Thoughts on the Supreme Court Oral Argument in the Trump Section 3 Case

Today's Supreme Court oral argument in Trump v. Anderson overwhelmingly focused on the issue of whether Section 3 of the Fourteenth Amendment is "self-executing," that is whether states can enforce it in the absence of congressional legislation. Most of the other issues at stake in the case got little or no attention. For example, there was almost no discussion of the question of whether the January 6 attack on the Capitol was an "insurrection" and whether Trump "engaged" in it.

Both liberal and conservative justices repeatedly raised questions about whether letting states enforce Section 3 would lead to a lack of uniformity, and whether states could abuse their authority by trying to disqualify people for political reasons. Given the extensive focus on this issue and the relative neglect of others, there is a good chance that the Court will overrule the Colorado decision on that basis. Strikingly, the questioning focused much more on pragmatic concerns about chaos and abuse than on more traditional legal issues about the text, structure, and original meaning of Section 3. The self-execution question may also appeal to the justices because it is an "off ramp" that would allow them to dispose of this hot potato without having to pass judgment on the nature of the January 6 attack on the Capitol and Trump's egregious actions in inciting it and trying to use it as leverage to force Congress to keep him in power after losing the 2020 election.

But it would nonetheless be a mistake to decide the case in that way. Nothing in the text or original meaning of the Fourteenth Amendment require congressional legislation to enforce it. Indeed, multiple ex-Confederates were adjudged disqualified in the aftermath of the Civil War even without any such enforcement legislation, which suggests a broad understanding that disqualification does not depend on congressional action. Section 5 of the Fourteenth Amendment does give Congress the power to enact "appropriate" enforcement legislation. But there is no indication that this power is exclusive. And the Court has repeatedly allowed self-enforcement for other parts of the Fourteenth Amendment, even though Section 5 applies to them, as well.

Practical concerns about non-uniformity and abuse are understandable. But they are overblown. If state officials or state courts reach unsound or contradictory legal conclusions about the meaning of Section 3 (e.g.—by adopting overbroad definitions of what qualifies as an "insurrection"), their determinations could be reviewed in federal court, and the Supreme Court could impose a uniform definition of the terms in question. Indeed, it could do so in this very case! Non-uniform interpretations of provisions of the federal Constitution by state and lower federal courts can occur in many contexts. Settling such issues is one of the reasons why we have a Supreme Court that can be the final arbiter of federal constitutional questions.

In 2016, there was litigation in multiple states over claims brought by Trump supporters to the effect that Sen. Ted Cruz, his chief rival for the GOP presidential nomination, was not a "natural born" citizen (Cruz was born in Canada to US-citizen parents). Courts in different states could have reached divergent conclusions on the issue of whether a child born to US citizens while the latter resided abroad counts as "natural born" (it so happens they did not). Yet no one doubted state courts could decide this issue, subject—of course—to potential review by the federal Supreme Court.

Courts in different states could also potentially reach divergent conclusions about factual issues (e.g.—whether a particular person was involved in the insurrection or not). But that's a problem that can arise in any adjudication of candidate qualifications. Thus, no one doubts that state courts can adjudicate whether a candidate for president meets the requirements that he be 35 years old, and a "natural born" citizen of the United States. But if, for example, there is a factual dispute about the validity or accuracy of the candidate's birth certificate (recall "birtherist" claims that Barack Obama wasn't actually born in the United States), courts in different states could potentially reach divergent factual conclusions on that, as well.

Even on factual issues, serious abuses can be constrained by the power of the Supreme Court to review lower-court factual findings for "clear error." If lower courts or state officials make things up out of whole cloth or go against the clear weight of evidence, that can still be overturned.

While many of the justices seem to have overestimated the downside of allowing enforcement by states, they seemingly ignored the downside of ruling that the power belongs exclusively to Congress. As a practical matter, the latter turns Section 3 into a dead letter—not just for insurrectionist presidents, but for everyone else. It's highly unlikely Congress will enact new enforcement legislation at any time in the near future.

Before Trump's attempt to overturn the 2020 election and the resulting January 6 attack on the Capitol, it may have seemed that gutting Section 3 is no big deal, because there was little chance it would be needed. But we can no longer assume such complacency is justified. If future presidents and other officeholders do not face disqualification for insurrection, they might well conclude that imitating Trump's example is a worthwhile gamble. If you succeed, you get to stay in power despite losing an election! And if you fail, you can still seek office again in the future.

At one point, Justice Kavanaugh suggested that 18 U.S.C. Section 2383, the federal criminal insurrection law, qualifies as an exclusive enforcement statute. For reasons explained in Part I.B of my amicus brief, that simply isn't true.  In addition, requiring a criminal conviction for insurrection will make enforcement impossible in situations where getting one is difficult or impossible, or where prosecutors choose to pursue other charges instead.

While the vast bulk of oral argument time was devoted to the self-execution issue, there was also some discussion of the issue of whether the presidency is covered by Section 3. Here, Trump lawyer Jonathan Mitchell made some striking concessions. For example, he conceded there is no good reason why an insurrectionist president should  be excluded from coverage. Indeed, as he noted, the case for covering the president is actually stronger than that for covering other offices, given that the president is commander-in-chief of the armed forces, thereby making an insurrectionist president a far greater menace than an insurrectionist member of Congress or lower-level executive official. He also admitted that people at the time feared that a former Confederate such as Jefferson Davis could potentially become president.

Mitchell tried to suggest that the exclusion of the presidency was the result of a "compromise." But such a compromise could only occur if some people had a reason why they wanted to exclude the highest office in the land from Section 3's coverage. If, as Mitchell admitted, no such reason exists, there is no basis for believing that a compromise on this point was made.

Early on, a good chunk of time was also spent on Mitchell's creative argument that Section 3 cannot be enforced until an official has actually taken office, because until then Congress can also lift his disability by a 2/3 majority vote of each House. This is a badly flawed argument, and I don't think it got much traction with the Court. But Mitchell and Trump won't need to rely on this theory if they can win on self-enforcement, as now seems probable.

In sum, the most likely outcome is that the Court will rule in Trump's favor on the grounds that Section 3 is not self-enforcing. It's a bad argument that would set a dangerous precedent by effectively gutting Section 3. But it obviously appeals to the justices, for reasons that see more pragmatic in nature than legal.