The Supreme Court will hear arguments this week about whether former President Donald Trump is disqualified from running for president for his role in the events of Jan. 6, 2020. As explained last week, the most likely issue Trump v. Anderson will be decided upon isn’t the hot-button issue of whether he engaged in insurrection.
Instead, the Court will likely rule on seemingly mundane questions, with the most probable candidate being whether Congress is required to pass legislation that enforces Section 3 of the 14th amendment before one can be disqualified under that constitutional provision.
The issue’s crux is whether Section 3 is “self-executing” — that is, whether it takes effect as soon as it’s ratified. Take, for instance, the Commander-in-Chief Clause — the president can act as commander-in-chief of the armed forces without waiting for Congress to pass a law making the president such. Likewise, constitutional rights are generally deemed self-executing.
But other portions of the Constitution are not operative until Congress passes some legislation making them so. Sometimes this is very clear in the constitutional text, such as the Presidential Succession Clause, which states that after the President and Vice President, “Congress may by law determine presidential succession.”
The argument against disqualifying. Those arguing that Section 3 is not self-executing point to Section 5 of the 14th Amendment for support, which states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
In the 1866 debates in the Congress that drafted Section 3, there are also repeated statements by Senators and Representatives that Section 3 would require implementing legislation by Congress for it to be enforceable, and no comments to the contrary.
Resolving the case on this point may be attractive to the Court because it does not require condoning or condemning Mr. Trump. The Justices can just bypass any discussion of whether he engaged in insurrection in relation to January 6.
In this way, the Court can avoid being seen as interfering in politics and inflaming the passions of a large portion of the country since someone will be upset no matter how the Court rules on that substantive question. Instead, the Court would let the voters decide whether Mr. Trump’s actions disqualified him from another term in the White House.
This issue may also provide the easiest analysis for the Court since there is relevant precedent — a single case from 1869, the year after the 14th Amendment was adopted. In that case, a criminal defendant invoked Section 3 to challenge his conviction before a judge who had served as an officer in the Confederate Army.
The Chief Justice of the U.S. Supreme Court, Salmon Chase, decided this case while sitting on the Virginia Circuit court (something Justices used to do). As Stanford Law Professor and former federal judge Michael McConnell observes, “Chase had been a leading abolitionist lawyer, served in Lincoln’s cabinet, was Lincoln’s nominee to replace Roger B. Taney as Chief Justice, and knew everything there was to know about the Fourteenth Amendment.”
Chief Justice Chase held that the enforcement mechanism of a Section 3 disqualification “can only be provided for by Congress,” citing the same Section 5 discussed above. And while the Supreme Court is not bound by this case, the Court often finds these old decisions by Supreme Court Justices sitting on lower courts to be persuasive authority.
One year after the case, Congress responded and passed the Insurrection Act of 1870, which provided that anyone convicted of engaging in “any rebellion or insurrection against the authority of the United States or the laws thereof” shall be “incapable of holding any office under the United States.”
But Mr. Trump has not been convicted, or even charged, with engaging in insurrection. And Congress has not currently provided any other enforcement mechanism, such as a civil action, for Section 3.
The argument for disqualifying. This is not an easy issue, however, as the arguments on the other side — that Section 3 is self-executing — also have force. First, Section 5’s empowering of Congress to enforce the amendment through legislation means Congress may legislate to enforce Section 3, but it does not mean only Congress can act to enforce the provision. And Section 5 does not expressly exclude the states or courts from enforcing the amendment.
Also, the rest of the amendment, Sections 1, 2, and 4, are self-executing, so it’s odd to read Section 3 differently, especially since it contains no language implying that it should be understood distinctly from the rest of the amendment. What’s more, other times the Constitution uses the same language as Section 3 — “no person shall” — those provisions are considered self-executing.
In addition, the states are required to apply the Constitution, including state courts, and states are also authorized to run presidential elections. On that latter point, states have historically excluded folks from the ballot that did not satisfy other requirements, like being a natural born citizen or 35 years of age. And if Congress does not agree with a state’s disqualification of someone under Section 3, that same section allows Congress to override the disqualification.
Also, Chief Justice Chase’s opinion in that 1869 case was based on weak reasoning and concerns not present here since Mr. Trump had a trial. And prior to the enactment of enforcement legislation by Congress, states disqualified state officials under Section 3.
This Thursday, during oral argument, which you can listen to a livestream here, we’ll more clearly see which of these arguments the Justices find most persuasive and whether they will focus more on this particular issue compared to the many others in the case.