Presidential Disqualification: Discussion Questions on Trump v. Anderson

JB

As I have done in past years, I am publishing the discussion questions for the annual casebook supplement of Processes of Constitutional Decisionmaking for some of the major cases of the past Supreme Court Term. Here are the discussion questions for Trump v. Anderson.

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Discussion

1. The Colorado trial court held that Section 3 did not apply to the President because the President is not an “officer of the United States.” For an argument to this effect see Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350 (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4568771. This reading would have the puzzling consequence that former Confederate Generals and officials, such as Jefferson Davis, who had previously taken oaths of office to support the Union, would be barred from holding lower federal and state offices, and could not serve as Presidential electors, but could still serve as President. Why would the Reconstruction Congress, which sought to stamp out rebellion, and in Mark Graber’s words, “reward loyalty, [and] punish treason,” have wanted this result? Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (2023).

In Trump v. Anderson, the Court holds that “nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.” In order for this holding to apply to Trump, the President must be a “federal officeholder.” Does this resolve the question of whether the President is an “officer of the United States.”?

2. Both the arguments of the majority and the concurrences are largely structural and prudential. None of the opinions spend much time with the history of the adoption of Section 3. That history, however, strongly suggests that Section 3 is self-enforcing and that it applies to former President Trump. See, e.g., William Baude and Michael Stokes Paulsen, The Sweep and Force of Section Three 172 U Pa. L. Rev. 605 (2024); Gerard N. Magliocca, Background as Foreground: Section Three of the Fourteenth Amendment and January 6th, 25 U. Pa. J. Const. L. 1059 (2023); Mark Graber, Section Three of the Fourteenth Amendment: Our Questions, Their Answers, SSRN, (October 3, 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591133. Why do you think that the originalist Justices disregarded adoption history in this case when they consider it very important in many other cases you have read?

3. All of the Justices are concerned that states will disagree about the procedures for disqualification and that there will be a patchwork of determinations, which will undermine the process of electing presidents, who represent the entire country. Does this reasoning apply equally to elections for Senators and Representatives who represent a single state or parts of a single state? Note the citations to the Term Limits case, which held that states could not add additional qualifications for federal offices to those stated in the Constitution. But in this case the states are not adding new qualifications; they are enforcing ones already there.

4. The majority opinion tries to settle the application of Section 3 in future cases by strictly limiting when disqualification will apply. The majority not only prevents States from disqualifying presidential candidates on the grounds that they engaged insurrection; it also requires Congress to specifically pass a statute enforcing Section 3 and that statute must be “congruent and proportional” to Congress’s power to disqualify insurrectionists. This means that if a candidate has been convicted of violating some other federal law designed to prevent abuses of government power, or even designed to prevent the peaceful transition of power, this conviction might not serve as grounds for disqualification. The effect of the Court’s holding is to greatly narrow the chances that either former President Trump, or some other participant in an insurrection, will be disqualified from federal office.

During the Reconstruction Era, the House and Senate refused to seat people on the basis of Article I, section 5, clause 1, which provides that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members." Does Trump v. Anderson remove this ability? May a criminal defendant raise Section 3 as a defense against a federal prosecutor on the grounds that the prosecutor could not legally hold federal office?

Finally, after Trump v. Anderson, are the members of Congress allowed to refuse to certify electoral votes for an insurrectionist? 3 U.S.C. § 15(d)(2)(B)(ii)(II), part of the 2022 amendments to the Electoral Count Act, states that “[t]he only grounds for objections shall be [if] ... [t]he vote of one or more electors has not been regularly given.” This language, taken from the 1887 Electoral Count Act, has been generally understood to allow certain constitutional challenges to certification, for example, the objection that a presidential candidate is not 35 years of age. See Derek T. Muller, Electoral Votes Regularly Given, 55 Ga. L. Rev. 1529 (2021); Stephen A. Siegel, The Conscientious Congressman's Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541 (2004). Absent enforcing legislation by Congress, does it also allow objections based on Section 3?

What justifies the Court’s caution in limiting the possible ways that Section 3 might be applied? Is the problem that in the heat of an election contest, it is better to let the public decide whether to allow an insurrectionist to hold office? If so, what is the purpose of Section 3?

5. Is the problem that Section 3 only works in a certain historical context? In the aftermath of the Civil War the Republicans could impose disqualification on candidates from defeated Southern states who had supported or fought for the Confederacy. There was no doubt that an insurrection had occurred, and Democrats lacked the practical ability to use Section 3 to retaliate against Republicans. But today the two major political parties are almost evenly matched, many Republicans believe that Trump is being unfairly persecuted, and many may be tempted to retaliate against attempts to disqualify Trump by disqualifying Democratic candidates in jurisdictions where Republicans have political control. Should Section 3 be applicable under these conditions? For an argument that “Section 3 has no ... institutional pathway [in the contemporary United States] for systematically evaluating whether disqualification should be imposed on any individual,” see Samuel Issacharoff, Old Constitutional Provisions and Presidential Selection: The folly of exhuming Section 3 of the 14th Amendment, Just Security, January 5, 2024, https://www.justsecurity.org/91009/old-constitutional-provisions-and-presidential-selection-the-folly-of-exhuming-section-3-of-the-14th-amendment/.