What’s Next for Section 3?

There is a consensus, based on last week’s oral argument in Trump v. Anderson, that the U.S. Supreme Court will reverse the Colorado Supreme Court’s ruling that Donald Trump must be removed from that state’s primary ballot because he engaged in insurrection within the meaning of section 3 of the 14^th amendment. The question now is on what basis the Court will rule and whether its ruling will leave it up to Congress to decide whether Trump is disqualified under section 3.

To understand the Court’s options, it is helpful to consider the distinction drawn by Professor Derek Muller here between treating this case as primarily presenting a substantive question of constitutional law under section 3 or as primarily presenting a question of election law regarding the scope of state power to adjudicate the qualifications of presidential candidates. In Muller’s view it should properly be analyzed as the latter.

I agree. It seems to me that the question of substantive enforcement is not squarely presented by this case. As noted in my last post, no one argues that states can disqualify a sitting president or, for that matter, any other federal official while in office. Perhaps a state could challenge in court the official acts of an alleged federal insurrectionist, but I suspect not and, in any event, that is not what is involved in this case.

It follows that the questions asked at oral argument regarding the automatic disqualification of a sitting president were largely beside the point. For example, Justice Gorsuch (I think) had a line of questions about whether Trump ceased to be the lawful president on January 7, 2021 and whether his actions were legally ineffective from that point on. Colorado’s counsel suggested that the answer would depend on the operation of the de facto officer doctrine, which I suspect was not comforting to the Court. A more comforting (and I think plausible) answer would have been that an insurrectionist in federal office does not automatically lose the powers of that office and can only be removed in accordance with federal law, i.e., by impeachment (or possibly by mechanisms established by law pursuant to section 5 of the 14^th amendment). That answer, moreover, should in no way compromise Colorado’s position, which is founded on its election powers, not on powers granted by section 3.

For the same reason, though, even if a sitting president were automatically disqualified by section 3, that would not help Colorado. Colorado has no power under section 3 to decide if a federal official is an insurrectionist. Its determination that Trump is an insurrectionist, even if valid and binding for purposes of keeping him off Colorado’s ballot, would in no way prevent him from assuming or exercising the powers of the presidency. Whatever mechanism(s) may or may not exist to prevent Trump from holding the presidency or exercising the powers thereof, they do not turn on the factual findings of a single state judge or the legal conclusions of a single state supreme court.

The real question is what powers states have, whether pursuant to the Presidential Electors Clause of Article II or otherwise, to impose or adjudicate qualifications for presidential candidates. To take a simple example, suppose a state passed a law providing that no candidate could appear on the general or primary election ballot unless at least 40 years of age (or, alternatively, that its presidential electors are prohibited from voting for any candidate who is under 40). Would such a law be unconstitutional because it imposes a qualification beyond that specified by the Constitution?

Professor Muller says yes, stating in his amicus brief (at page 19) that “[s]tates may not add qualifications to presidential candidates.” He cites a footnote in the Supreme Court’s recent decision regarding the authority of states to bind their presidential electors to vote for the winner of the state’s popular election. See Chiafalo v. Washington, 591 U.S. ___, 140 S.Ct. 2316, 2324 n. 4 (2020). The footnote says “if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.” Id. (emphasis added).

I read that as leaving the question open (i.e., that the Presidential Qualifications Clause may or may not prohibit states from imposing new requirements), but Muller knows more about this that I do. Furthermore, both the justices and parties in Trump v. Anderson seemed to be operating under the assumption that states lack the power to add qualifications to presidential candidates. Thus, the point seems to be effectively conceded for purposes of this case, even if I (and others, including Professor Akhil Amar) harbor doubts.

That being the case, it should be relatively straightforward for the Court to write an opinion that leaves Trump on the ballot without addressing whether he is ultimately qualified to hold the presidency under section 3. As Trump’s counsel stressed during oral argument, section 3 only provides that a disqualified insurrectionist may not “hold any office, civil or military, under the United States.” It does not prevent anyone from running for office. Moreover, Congress is expressly empowered to remove the disability imposed by section3. Therefore, the Court may simply hold that removing Trump from the ballot now, when any disqualification imposed by section 3 could be removed by Congress before inauguration day in 2025, amounts to imposing an additional qualification in violation of the Presidential Qualifications Clause.

To be sure, it would be equally plausible for the Court to hold that states are free to remove from the presidential ballot candidates they (reasonably) believe to be disqualified under section 3 and that the burden is on the candidates to get a waiver from Congress if they want to be reinstated. However, as suggested in my last post and confirmed by the oral argument, the Court really, really does not want to reach that result for a bunch of institutional and practical reasons. And if the Court can reach the result it wants without straining logic or existing law, it is a pretty good bet that is what it will do.

If that happens the Court will have no need to decide whether Trump is actually disqualified under section 3. It may or may not address or comment on whether there are other mechanisms by which Trump’s eligibility might be adjudicated prior to his assuming office. In my next post I will consider what those might be.