[This post is co-authored with Professor Seth Barrett Tillman.]
In the past, Blackman has compared Chief Justice Roberts’s opinions to “blue plate specials.” These compromise decisions are cobbled together with a mix of precedent, pragmatism, and prescience. A classic Roberts opinion will sound in the Court’s doctrine, appear eminently reasonable, but anticipate—and sometimes address—future controversies. Roberts has truly made this mode of opinion-writing an art form.
It appears to us that Roberts assigned himself the Court’s per curiam opinion in Trump v. Anderson—albeit, no one can be sure until the archives are opened. The Court did not merely decide the narrow case before it: whether Colorado law could be used to remove Trump from the presidential ballot, absent federal enforcement legislation. As the two concurrences pointed out, the Court could have simply stopped there. Instead, the Roberts Court plowed forward. The per curiam relied on, and indeed expanded the scope of Chief Justice Chase’s holding in Griffin’s Case. Trump v. Anderson held that Section 3 could only be enforced against a candidate for federal office through “congruent and proportional” legislation under Section 5. To be sure, there is language to support that holding in U.S. Term Limits v. Thornton, but there was an extension of doctrine here that was barely acknowledged.
Why did the Court break apart what could have been a solid 9-0 decision? After all, Chief Justice Warren achieved unanimity in Brown v. Board of Education by cobbling together nine members on a fairly narrow, but momentous decision. Perhaps the majority thought it essential to explain how Congress can exercise its power in order to demonstrate why Colorado could not do the same. After all, in NFIB v. Sebelius, Chief Justice Roberts explained why the Commerce Clause power did not support the individual mandate as a predicate to explain why the law could be saved under the taxing power. There is some precedent here. But there is another, more pragmatic explanation for Part II-B of the Trump v. Anderson per curiam decision. The Court was attempting to avert the potential chaos that may arise between now and inauguration day.
We realize law professors are arguing now about whether Congress, on January 6, can disqualify Trump pursuant to the Electoral Count Act. Five justices seem to have rejected that option. The per curiam opinion states:
Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” City of Boerne, 521 U. S., at 520. Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3. See Tr. of Oral Arg. 123. [emphasis added]
Certainly the Court is “aware” of the Electoral Count Reform Act (ECRA). Still, the Court suggests that no such implementing legislation exists. The ECRA does not even mention insurrection or Section 3. The Boerne test states that “There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” At a minimum, a law that does not even acknowledge the injury to be remedied cannot purport to provide a “congruent and proportional” response to that problem. The Section 5 test has never been clearly explained, but in our view, Boerne requires more than an implied recognition that Congress is providing a remedy to some problem. Another bill, sponsored by Rep. Zoe Lofgren (D-Calif.), expressly permitted objections based on section 3 of the Fourteenth Amendment. Perhaps that sort of clear statement could at least make a case under the Boerne test. But that House bill did not pass the Senate.
After Trump v. Anderson was decided, Rep. Loefgren stated that “it does not at first read appear that the Court indicated a viable path to implement Section 3 of the 14th Amendment absent enactment of a law outlining procedures to do so.” Likewise, Rep. Jamie Raskin (D-Md.) observed that “my initial reading of it suggests that they are saying that Congress must act … to pass a statute.”
Of course it is possible that Congress can choose to openly disagree with Trump v. Anderson. Or Congress could assert some other basis by which to block the certification of Trump’s electors, such as the Twelfth Amendment. But we think it exceedingly unlikely that Democratic congressional majorities will disqualify Trump on January 6, when the electoral votes are tabulated by Congress. If Trump is certified the winner on January 6, even over some objections from members of Congress, Chief Justice Roberts will issue the oath on January 20, 2025 at noon.
Once Trump holds the position of President, litigation will begin almost immediately. For example, Trump may begin his term by removing individuals holding federal positions. At least one of those individuals may assert that Trump is not lawfully the President because he was and remains ineligible under Section 3, so any removal of subordinate Executive Branch officers by Trump is invalid. This case would arise in a similar posture as Humphrey’s Executor—with the plaintiff either seeking backpay, or perhaps reinstatement. Or, the official could claim to actually still be in office, repeating a Trump-era controversy over who was the real director of the CFPB.
Similarly, Trump will sign various executive orders that may regulate private property interests. Those adversely affected will claim that Trump has no lawful authority to issue any such order. This posture would resemble Dames & Moore v. Regan. Perhaps Trump might issue a blanket pardon of everyone involved with the events of January 6, 2021. (Such a blanket pardon could include Trump himself by implication, if not expressly.) There will be litigation about whether such pardons (or more limited amnesties) are valid or whether various forms of supervised release remain in effect. Perhaps a federal district court judge somewhere may refuse to acknowledge the validity of the pardons. Criminal defendants will argue that Trump-appointed prosecutors are not validly appointed. New Trump-appointed judges will be characterized as “so-called” judges. And so on. In short order, the federal courts will have to decide the very questions that Trump v. Anderson avoided.
Were Trump re-elected, and contrary to Professor Lederman’s hopes and aspirations, the question of whether the President is an “Officer of the United States” will not be “re-consigned to the obscure corners of implausible scholarship.” It is even possible that the Trump Justice Department will vigorously argue that the President is not covered by Section 3. The future Solicitor General and Office of Legal Counsel should take note of the questioning from Justice Gorsuch and Justice Jackson during the Trump v. Anderson oral argument. These two jurists seemed quite comfortable with the position that the President is not an officer of or under the United States.
It is also possible, perhaps likely, that a similar position will be adopted by the DOJ in future Foreign Emoluments Clauses litigation. And, yes, we expect Trump will promptly be sued in the Southern District of New York due to his continuing (indirect) ownership interest in Trump Tower. (The Trump organization has sold the Trump hotel in Washington, D.C., so the case in the District of Maryland will not be resuscitated.) Sorry—we are not done with what Justice Kagan called “Officer stuff.” And for those keeping score at home, the result of the Supreme Court’s reversing the Colorado Supreme Court’s decision was that the Colorado state trial court’s decision was left in place. The Colorado state trial court held that the President is not an “Officer of the United States.”
Second, and here we agree with Lederman, the Trump v. Anderson per curiam opinion does not foreclose Trump’s eligibility from being raised in a defensive posture. But this point is less-than-clear.
The Sotomayor-Kagan-Jackson concurrence stated that “All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation.” Here, the concurrence cited Boerne (1997) and the Civil Rights Cases (1883). The concurrence also warned that the per curiam opinion “forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.”
We will reconcile these two threads: that is, the scope of self-execution when affirmative relief is sought and when negative relief is sought. The Fourteenth Amendment is “self-executing” when raised in a defensive posture. No enforcement legislation is needed to argue that a federal constitutional provision precludes a criminal prosecution or lawsuit brought by the government against an individual defendant. Section 5 applies equally to Sections 1 and 3. Sections 1 and 3 can be raised as a defense without implementing legislation, but neither section can be used to seek affirmative relief without implementing legislation. There is no tension between Section 3 and Section 5. Indeed, Jefferson Davis raised the Fourteenth Amendment in just such a defensive context. Davis argued that a Section 3-based disqualification was the sole remedy the government can seek against an alleged insurrectionist, and that Section 3 displaced any criminal prosecution. This issue was never adjudicated.
Likewise, we think Caesar Griffin could have raised a Section 3-based defense at his trial, as opposed to making Section 3 the basis for a collateral attack where he sought affirmative relief. Justice Barrett raised this precise issue during oral argument. She pointed out that Griffin’s Case was a “collateral proceeding.” Griffin sought relief in federal court to challenge a state court conviction. Barrett asked, “even if Section 3 is not a basis for collateral relief in [federal] habeas, which was new at the time, could Griffin have raised [Section 3 as a defense] at his [state court] trial [or] in direct appeal”? (Jonathan Mitchell answered, incorrectly, “No.”)
In contrast to the three-justice concurrence, we do not read the majority opinion to prohibit a defendant from raising Section 3 as part of his defense. We agree with Lederman that “the majority opinion doesn’t expressly reference such hypothetical ‘defense to enforcement’ cases.” To the contrary, we read the majority opinion as consistent with the view advanced in our amicus brief: “Section 3 could only be put into effect on behalf of a private party seeking affirmative relief against the government, e.g., a party seeking habeas relief, if that relief was authorized by a federal statute.” In Trump v. Anderson, the Court said such affirmative relief must come from Congress: “The Constitution empowers Congress to prescribe how those determinations should be made.” (Such a “determination” would order a government official to remove a candidate from the ballot for a federal position.) This holding, we think, is consistent with the sword-shield dichotomy in federal courts jurisprudence. In any event, on its facts, Trump v. Anderson only controls cases where the plaintiff has sought affirmative relief, as opposed to the sort of negative relief customarily sought by a defendant prosecuted or sued by the government. Instead, where Section 3 is raised as a defense, a court would have to confront the primary merits questions: Is the President an “Officer of the United States” and/or Did Trump “engage” in insurrection? But perhaps not? Perhaps, the merits questions could, again, be avoided?
Third, we offer a prediction on what a future ruling may look like that, once again, avoids the merits questions. Several courts dismissed challenges to Trump’s eligibility on political question grounds. That line of reasoning may have been helpful to Trump in the short term, but it would pose a risk to Trump on January 6, 2025. Why? If the joint session of Congress disqualifies Trump on January 6, 2025, he would almost certainly seek to file some sort of action in the United States District Court for the District of Columbia, with eventual appeal to the United States Supreme Court. But if the issue was in fact a political question, then the Court would likely defer to whatever it is that Congress did.
Now, assuming that the Supreme Court precluded any possible congressional objections against Trump’s holding the presidency under the ECRA, then Section 3 litigation would only resume after Trump’s election is certified and after Trump is inaugurated. At that point, the political question doctrine would insulate Trump’s election and his holding the presidency from judicial review. The Supreme Court could simply say “We defer to Congress’s certification of Trump’s election.” The Court could bolster that ruling by pointing to the fact that objections were raised based on Section 3, but those objections did not prevail.
Alternatively, or, perhaps, in addition, Chief Justice Roberts could reach deep into the cookbook and pull out another recipe from Griffin’s Case: the de facto officer doctrine. Under this doctrine, the Court could retroactively and prospectively insulate Trump’s actions while holding the presidency from legal challenges, without actually opining on whether Trump is the lawful president. Even if it is not clear whether Trump is lawfully President, the courts will, as a practical matter, presume he is the president in all regards unless he is removed by impeachment or by the Twenty-Fifth Amendment. Through either the political question doctrine, or the de facto officer doctrine, the courts would not block Trump’s actions based on Section 3, unless he is removed by the political process. Or the Court could simply hold, consistent with mounds of authority, that the President is not an “Officer of the United States,” and move on. Should the Supreme Court choose any of these paths, it should do so as quickly and decisively after the inauguration as possible.
The only way to keep Trump out of the White House is for Trump to lose the general election. Lawfare, which was highly successful at hobbling Trump during his first term, will not prevent him from serving a second term.
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