Tuesday, February 06, 2024

A User’s Guide to Trump v. Anderson, Part Six: The Two “Off-Ramp” Arguments Based Upon Griffin's Case and Sea Clammers that Would Allow the Supreme Court to Avoid Deciding Whether Trump is Eligible to be President [UPDATED to reflect a mention of Griffin's Case on the House floor in February 1870]

Marty Lederman

As I explained in one of my earlier posts, several or all of the Justices might be inclined to decide the case on some ground that doesn’t require the Court to decide whether Donald Trump is eligible to be President, if such an “off-ramp” solution is legally available. 

Trump himself offers the Court at least three such “off-ramps,” and the respondent Colorado Republican State Central Committee (CRSCC) proposes two others.  In this post, I’ll discuss the first of the CRSCC’s off-ramp arguments, which invokes Chief Justice Chase’s opinion in In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869), and the first of Trump’s three “off-ramp” arguments, which also depends upon Griffin’s Case, although in a very different way—as the predicate for an argument that Congress has “impliedly precluded” Colorado from acting as it did.  In my next post, I’ll address the other two “off-ramp” arguments that Trump offers.  And in the post after that one, I’ll address the remaining argument raised by the CRSCC (and some amici), which is based upon the First Amendment rights of Trump supporters in Colorado.  Although Trump himself doesn’t make this argument (probably because the right in question isn’t his), I think it might be the most plausible of the “off-ramp” solutions before the Court. 

A.  Off-Ramp Argument No. 1:  The Griffin’s Case Argument That Enforcement Requires Congressional Legislation 

“Congress, and only Congress,” writes the CRSCC (Brief at pp.13-14), “has authority to enforce Section 3,” and therefore “states cannot claim for themselves authority to seek the disqualification of presidential candidates absent congressional authorization.”  In support of this very broad proposition, the CRSCC cites In re Griffin, in which Chief Justice Chase, sitting by designation, wrote that the disability “create[d]” by Section 3 is “to be made operative … by the legislation of congress in its ordinary course.”  11 F. Cas. at 26.

In his opening brief, Donald Trump appeared to preserve this argument, though just barely:  He didn’t devote any space to it.[1]  His reply brief does even less with it than that, offering only the ambiguous sentence “that section 3 may be enforced only though the congressionally enacted methods of enforcement,” without even arguing that Chief Justice Chase got it right in Griffin’s Case.  The CRSCC, however, spends more than ten pages on the argument in Part II of its reply brief. 

            The CRSCC’s argument is a variation on the now oft-heard claim that Section 3 is “not self-executing.”  Before addressing the substance of the argument itself, it’s important to distinguish it from another, more draconian “non-self-execution” argument that no party is making but that has been prominent in some public discussions of the case—namely, that Section 3 does not apply to disqualify anyone from any office absent congressional legislation.  That argument isn’t at issue in the case:  Everyone agrees that if Donald Trump was subject to Section 3 as President, and if he engaged in an insurrection on January 6, 2021, then that conduct rendered him legally ineligible to serve as President or in the other covered state and federal offices (absent action by two-thirds of both houses of Congress to eliminate that disability).  Indeed, in his reply brief (at p.19), Trump says in no uncertain terms that “President Trump is not arguing that section 3 is ‘non-self-executing.’”  (Kim Roosevelt’s amicus brief is just terrific in explaining that Section 3 applies of its own force.  I don’t believe, however, that anyone in the case disputes that.)  The point of contention is not about whether Section 3 applies when its conditions are met, but instead about who can enforce it, under what circumstances, and in what manner. 

Or at least, that’s what Trump (in his opening brief) and the CRSCC claim to be the point of contention.  In fact, however, this whole argument rests on a mistaken premise—namely, that Colorado is, or is trying to, “enforce” Section 3.  As I explained in an earlier post, that’s simply not so, although (unfortunately) all the parties in the case appear to assume otherwise. 

Colorado is not taking any steps to "enforce" Section 3's disqualification rule.  The state courts, for example, are not trying to enjoin Donald Trump from taking office.  Colorado officials aren’t trying to arrest him to prevent him from performing the duties of that office.  Colorado isn’t even trying to prevent Colorado’s presidential electors from casting their electoral votes for Donald Trump if he wins the popular vote in Colorado in November, nor (as I’ve explained earlier) has it asserted any state law authority to exclude Trump from the Colorado general election ballot (something that Colorado law does not appear to authorize). 

To be sure, the Colorado Supreme Court has declared that Colorado law requires the Secretary of State to exclude Trump’s name from the presidential primary election ballot (though as I explained here, that’s not happening, either—it’s too late for that now).  But Colorado is not requiring that ballot exclusion in order to prevent Trump from serving as President, or in order to “enforce” Section 3 in any other way.  Colorado’s stated objectives are, instead, entirely about (in then-Judge Gorsuch’s words) the preservation of the integrity and “practical functioning” of the Colorado primary election process.  Moreover, regardless of Colorado’s objectives, a ballot exclusion of Trump in the Colorado primary not only wouldn’t affect his ability to hold office—it wouldn’t even affect whether Colorado Republican voters could vote for him; whether the Republican Party would have to recognize Colorado delegates “allocated” to another candidate because of the ballot exclusion; or whether the Republican Party nominates Trump for President in July. 

Therefore, even if Chief Justice Chase had held in Griffin’s Case, as Trump asserts, that “congressional enforcement legislation [is] the exclusive means for enforcing section 3” (Chase didn’t do so), and even if that proposition were correct (it’s not) or if Chase were right about what he did hold about the inability of courts to enforce Section 3 against someone already in office (he wasn’t), that still would not require Colorado to include Trump’s name on the primary election ballot, because the exclusion of that name on the ballot would not be a means of “enforcing” Section 3. 

There’s no need for me to belabor the point further here; for more details, see my earlier post. 

Even apart from that fundamental flaw, however, this first “off-ramp” argument wouldn’t withstand scrutiny on its own terms, even if this were a case (again:  it’s not) where a state were purporting to “enforce” Section 3 by, for example, refusing to allow the winner of an election to enter into state office because she’s disqualified under Section 3, or using a state-law-sanctioned cause of action to remove such a person from the state office they’re already occupying. 

Much ink has already been spilled, in briefs and articles and blogposts, about the problems and mistakes in Chief Justice Chase’s opinion in Griffin’s Case.  I won’t rehash all of those arguments here.  If you’re interested, good places to start are Part II-C of the Baude/Paulsen article, and Part I-E of Kim Roosevelt’s amicus brief.  (And the fact that Trump’s counsel Jonathan Mitchell doesn’t make any effort to defend this argument should tell you something about its prospects.) 

In this post I’ll simply flag a couple of points that haven’t been sufficiently emphasized yet, or that warrant particular additional attention in light of the CRSCC’s arguments: 

Chase’s Argument was Focused on Judicial Removal of Officials Already in Office. 

Contrary to Trump’s opening brief, Chief Justice Chase did not hold in Griffin’s Case that Section 3 can “only” be enforced pursuant to “congressional implementing legislation.”  Chase’s concern in that case was the prospect of courts being asked to remove persons from office on grounds that they are Section-3-disqualified.  To be sure, that wasn’t technically the issue in Griffin’s Case itself:  Chase wasn’t being asked to enjoin Virginia Judge Hugh Sheffey from continuing to serve in office, as would be the case in, e.g., a quo warranto action.  Instead, Chase was adjudicating a habeas petition from a defendant sentenced by Judge Sheffey who was asking to have Sheffey’s actions declared invalid on grounds that the judge was acting ultra vires due to his Section 3 disqualification.  That requested relief, however, amounted to a de facto action to remove Sheffey from office, because if judges were to declare all his decrees to be null and void, that would effectively prevent Sheffey from performing the functions of the office.  The point Chase was trying to make is that such removals from office, de jure or de facto, should only be done if and when Congress says so, and according to Congress’s terms—that because of due process concerns present when someone is being removed from office, rules for “proceedings, evidence, decisions, and enforcements of decisions, more or less formal,” were “indispensable” and could “only be provided for by congress.”  11 F. Cas. at 26. 

It was probable, Chase reasoned (and he was right), that some of the many persons subject to Section 3 “ha[d] been elected to office in the states which have received them” after the War but before the effective date of the Fourteenth Amendment.  Id. at 25.  What concerned Chase was that “[i]f the construction now contended for be given to [Section 3], the effect must be to annul all official acts performed by these officers No sentence, no judgment, no decree, no acknowledgment of a deed, no record of a deed, no sheriff’s or commissioner’s sale—in short no official act—is of the least validity.  It is impossible to measure the evils which such a construction would add to the calamities which have already fallen upon the people of these states.”  Id. (emphasis added).  Chase therefore opined “that persons in office by lawful appointment or election before the promulgation of the fourteenth amendment, are not removed therefrom by the direct and immediate effect of the prohibition to hold office contained in the third section; but that legislation by congress is necessary to give effect to the prohibition, by providing for such removal.  Id. at 26 (emphasis added). 

By contrast, Chase indicated that he wouldn’t be concerned about a disqualified person being prevented from taking office in the first instance At the end of his opinion, he contrasted the Section 3 claim he was considering from the ordinary operation of other constitutional qualification rules, such as those “ordaining that no person shall be a representative or senator, or president, or vice president, unless having certain pre-prescribed qualifications.”  These provisions, he noted, typically “operate on the capacity to take office.”  Id. at 27 (emphasis added).  “The election or appointment itself is prohibited and invalidated” in such a case, id. and Chase signaled that he had no problem with that.  Indeed, he contrasted that familiar operation of a federal qualification with an action to remove such a person from an office already held, which he assumed was far rarer and more problematic:  “yet no instance is believed to exist where a person has been actually elected, and has actually taken the office, notwithstanding the prohibition, and his acts, while exercising its functions, have been held invalid.” 

What Chase didn’t realize, or didn’t mention, anyway, was that Section 3 can work the same way—i.e., it can be enforced by state or federal officials taking steps to prevent disqualified individuals, even those that have won elections, from assuming office in the first instance.  Indeed, North Carolina officials did just that in at least two cases occurring at roughly the same time as the Griffin litigation.  See Worthy v. Barrett, 63 N.C. 199 (1869); In re Tate, 63 N.C. 308 (1869).  Similarly, in Virginia, which was under military control during reconstruction, military commanders apparently refused to allow elected individuals to assume office where they were barred by Section 3.  (See the Amar amicus brief at pages 13-14.)  All of this was done absent the prescriptions of any congressional statute.  (The CRSCC argues that Congress had authorized such states to enforce Section 3 in a way they otherwise couldn’t, but that’s a gross distortion of the historical record.[2])  Similarly, it’s also not hard to imagine Presidents, Governors and other executive officials deciding not to appoint persons to executive and judicial offices where they assessed that such prospective officers were ineligible under Section 3.  Surely no congressional legislation was necessary before appointing officials could “enforce” Section 3 in that manner, and presumably Chase would have agreed. 

Therefore, notwithstanding a sentence of two in Chase’s opinion that could be read, in isolation, more broadly, the better reading of Griffin’s Case is that Chase believed congressional legislation prescribing “proceedings, evidence, decisions, and enforcements of decisions, more or less formal,” was a prerequisite to removing an individual from office (or adjudicating all of his actions to be invalid).  That question, however, is not raised in the Trump case, because no one is proposing to remove Trump from any office he already holds (and Colorado would never presume that it had the power to do so, in any event). 

Even With Respect to the Removal of Officers, Chase’s Opinion was Inconsistent with Contemporaneous State Practice. 

As explained above, Chief Justice Chase did opine in Griffin’s Case that courts should not be able to effectively remove individuals from offices they already held absent congressional legislation prescribing “proceedings, evidence, decisions, and enforcements of decisions, more or less formal.”  11 F. Cas. at 26.  In addition to all of its other faults, that reasoning was also inconsistent with the practice in at least one state, Louisiana, which had enacted and implemented a statute providing for suits in state court to remove disqualified officials from office.  See, e.g.State ex rel. Sandlin v. Watkins, 21 La. Ann. 631 (1869); State ex rel. Dowries v. Towne, 21 La. Ann. 490 (1869); State v. Lewis, 22 La. Ann. 33 (1870).  As far as I know, no one at the time, or since, complained that Louisiana was acting unconstitutionally, even when it applied that law after the decision in Griffin’s Case. 

In addition to its mistaken suggestion that Congress had authorized Louisiana to act in a way that was off-limits to loyal states (see footnote 2 below), the CRSCC argues in its reply brief (pp. 14-15) that this Louisiana statute (as well as the North Carolina statute discussed above that was implemented to prevent elected individuals from assuming office) enforced Section 3 only as applied to state, not federal, officers.  But that was exactly the situation in In re Griffin.  Chief Justice Chase obviously was not articulating a precondition for enforcing Section 3 only against federal officers, because there were no such officers whose eligibility was at issue in the case:  Hugh Sheffey was a Virginia judge.  Therefore to the extent the CRSCC’s argument is predicated on Chase’s opinion in Griffin’s Case, the practice and precedent in Louisiana can’t be reconciled with it. 

Notably, this Louisiana practice is not only a thing of the distant past.  There is another petition for certiorari currently pending in the Supreme Court, which has been distributed for conference of the Justices next week, involving the application of a state statute to remove from office an individual who participated in the January 6, 2021 attack on the Capitol.  See Griffin v. New MexicoNo. 23-279. 

Couy Griffin was an elected member of County Commission in Otero County, New Mexico.  A state court found that on January 6, 2021 he was part of the mob that breached Capitol grounds; chanted “Heave! Ho!” on a bullhorn to synchronize the crushing of police officers guarding the West Terrace tunnel; and posted a social media video during the event stating, “this is what you're going to get, and you're going to get more of it.”  At Griffin’s sentencing in federal district court (he was convicted of trespass), federal District Court Judge McFadden noted that Griffin’s actions were “in grave tension with th[e] oath” he had taken as a state officer.

Three New Mexico residents brought an action under New Mexico’s quo warranto statute, N.M. Stat. Ann. §§ 44-3-1 et seq., seeking to remove Griffin from his office as an Otero County Commissioner and bar him from holding any future federal or state public office.  Following a bench trial, the state court found that the January 6 attack was an “insurrection” in which Griffin had “engaged,” and therefore ordered his immediate removal from state office and permanently enjoined him from holding public office in the future.

If Chief Justice Chase had been correct, it would have been unconstitutional for the New Mexico court to order Griffin’s removal from office because Congress has not authorized such a state-court method of “enforcing” Section 3. 

B.  Off-Ramp Argument No. 2:  Trump’s Sea Clammers Argument that Congress has “Implicitly Precluded” Colorado’s Alleged Effort to “Enforce” Section 3 

As I noted above, Trump himself does not argue that Section 3 is in any way “non-self-executing.”  Nor does he any longer (i.e., in his reply brief) make any effort to defend the merits of Chief Justice Chase’s decision in In re Griffin.  Instead, he tries to use the Griffin’s Case decision as part of an historical narrative about how Congress has allegedly decided, over the course of more than a century, that prosecutions under 18 U.S.C. § 2383 shall be the “exclusive means” of enforcing Section 3, and that therefore state actions to enforce Section 3, including by way of ballot-access denials, are “implicitly preclude[d]” under the “Sea Clammers doctrine.”  In Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981), the Court held that “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude” other remedies.  Id. at 20.  The Court developed the Sea Clammers doctrine in order to decide whether one federal remedial scheme supersedes another (namely, 42 U.S.C. § 1983).  I’m not aware that the Supreme Court has ever applied Sea Clammers, or any doctrine like, it, to “preclude” enforcement of federal law by the states.  But there’s no logical reason why the Court couldn’t recognize an analogous doctrine in such a federal/state context.  And that’s what Trump argues—namely, that Congress’s actions over the years reflect an intent that certain federal statutory means of enforcing Section 3 “preclude” enforcement by states. 

In order to understand this argument, it’s helpful, I think, to lay out its steps in chronological order, derived from Trump’s two briefs (see his opening brief at pages 39-40 and his reply brief at pages 19-20): 

1.  In 1869, Chief Justice Chase (allegedly) opined, rightly or wrongly, that Section 3 can only be enforced pursuant to congressional implementation legislation.  (I explain above that that’s a significant over-reading of Chase’s opinion, but that probably doesn’t matter for purposes of Trump’s “preclusion” argument.)


2.  In 1870, Congress had an “understanding,” based upon Griffin’s Case, “that its implementing legislation would be exclusive,” and therefore in 1870 enacted two provisions designed to enforce Section 3: 

(i)             A “quo warranto” provision:  Section 14 of the Enforcement Act of 1870 required that “whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of [Section 3], it shall be the duty of the district attorney of the United States for the district in which such person shall hold office … to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district,” and that court would thereafter order the individual removed from office upon proof that Section 3 applied.


(ii)           A criminal misdemeanor provision:  Section 15 of the same 1870 Act made it a misdemeanor for any person ineligible to hold office under Section 3 “to knowingly accept or hold” any office “to which he is ineligible under [Section 3],” or to attempt to hold, or exercise the duties of, any such office.  The offense was punishable by up to a year in prison and a $1000 fine. 

According to Trump’s argument, those thus became two of the three exclusive means of enforcing Section 3 as of 1870.  The third way would be a felony prosecution under a statute Congress had enacted back in 1862 (i.e., four years before Section 3 was drafted), Section 2 of the Second Confiscation Act of 1862, which made it unlawful to, inter alia, “incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof.”  The potential penalties for such involvement in insurrection or rebellion included ten years’ imprisonment, a $10,000 fine, and liberation of the person’s slaves (“if any he have”), [UPDATE:] and section 3 of that 1862 statute "forever" disqualified persons found guilty from holding any officer "under the United States."  That felony statute has persisted through the years, and the current version of it appears as section 2383 of the Criminal Code.  Section 2383 reads: 

(iii)         Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. 

3.  In 1909, as part of its overhaul and formal codification of the federal criminal code, Congress repealed the 1870-enacted misdemeanor provision, along with many other statutes.  See An Act to codify, revise, and amend the penal laws of the United States, ch. 321, § 341, 35 Stat. 1088, 1153, § 341 (1909) (repealing, inter alia, Rev. Stat. § 1787).  Interestingly, there’s some evidence that Congress repealed this provision because it (or at least the scribes who were assigned to do the work to codify the criminal code) believed that Section 3 itself no longer had any prospective effect by virtue of amnesty statutes Congress had enacted in 1872 and 1898.  See United States Compiled Statutes, tit. XIX, at 4459 (1916) (noting that the misdemeanor provision was repealed because it had been “superseded by the removal of the disability imposed by said section 3 of the fourteenth amendment to the Constitution, by Act June 6, 1898”).[3]


4.  In 1948, as part of another formal recodification—this time of the Judicial Code—Congress repealed the quo warranto provision of the 1870 law.  See Act of June 25, 1948, ch. 646, § 39, 62 Stat. 869, 993 (repealing, inter alia, Rev. Stat. § 1786).  (On the same day, Congress recodified the criminal code, too, and renumbered the felony insurrection provision as section 2383.  See Act of June 25, 1948, ch. 645, § 2383, 62 Stat. 683, 808.)  The House Report stated that the repeal was because the provision was “obsolete,” see H. Rep. 80-308, at A230, rather than that it was “covered” or “superseded” by “other law” (which was the reason that other provisions were repealed, see id. at A261).  The legislative history does not reflect why those responsible for the recodification believed that the quo warranto provision was “obsolete,” but presumably it was for the same (mistaken) reason that Congress had repealed the misdemeanor provision in 1909 (with respect to which see the paragraph above and footnote 3). 

After Congress had done all of these things, according to Trump, all that was left standing in terms of federal statutory means of enforcing Section 3 was the felony insurrection statute, 18 U.S.C. § 2383.  Here’s how Jonathan Mitchell summarizes this historical account in his reply brief (pp.19-20): 

When Congress repealed the quo warranto provisions that it enacted in response to Griffin’s Case, it knew that the Insurrection Act [i.e., section 2 of the Second Confiscation Act, the current version of which is at 18 U.S.C. § 2383] now was the only means of enforcement left, and that the Insurrection Act would be the exclusive means of enforcing section 3 given the precedent of Griffin’s Case It defies belief that Congress, having abolished the quo warranto regime while leaving criminal prosecution under 18 U.S.C. § 2383 as the sole means of removing insurrectionist office-holders, would have wanted to allow state courts to enforce section 3 on their own by blocking candidates from the ballot. 

Note that this Sea Clammers “preclusion” argument does not depend on whether Chief Justice Chase was right or wrong about whether the Constitution requires congressional legislation—Mitchell doesn’t really take a view on that one way or the other; his argument is instead simply that Congress took Chase at his word and “legislated on the understanding that its implementing legislation would be exclusive” in light of Chase’s ruling.  Nor does Trump’s preclusion argument depend upon the patently invalid idea that Section 2 of the Second Confiscation Act of 1862 was designed to enforce or implement Section 3 of the Fourteenth Amendment.  Congress, after all, enacted the Confiscation Act six years before Section 3 became law.  Trump’s argument is, instead, that the 1870 Congress assumed that its enactments would be the only means of enforcing Section 3, that it then enacted two provisions to enforce it, and that thereafter Congress in the Twentieth Century decided that prosecution under § 2383 should be the exclusive means of enforcing Section 3—an historical congressional settlement, of sorts, that precludes any state-law efforts to enforce the law, even as to state offices.[4] 

There are serious problems with this “preclusion” argument. 

For one thing, the original federal quo warranto and misdemeanor provisions were introduced by Senator Trumbull on April 8, 1869, the month before Chief Justice Chase decided Griffin’s Casesee Cong. Globe, 41st Cong., 1st Sess. 625, and although Congress didn’t enact them until 1870, I haven’t been able to find any evidence that Griffin’s Case was the impetus for that enactment, or even that Chase’s opinion was discussed in connection with those proposals.  [UPDATE:  Samarth Desai points out that on February 9, 1870, Rep. William Lawrence of Ohio, in brief remarks in support of recommitting a different bill to a committee, mentioned that "under" the recent decision of the Chief Justice in Griffin's Case, the bill was "necessary to enforce the amendments to the Constitution."  There was no further discussion on the floor then.]  Congress plainly enacted those provisions not because it thought Chase’s opinion had precluded any other means of enforcement—after all, officials and judges in states such as Louisiana, North Carolina and Virginia were removing ineligible officers, and preventing other individuals from taking office, without constitutional objections—but because there was no extant federal-law mechanism for removing state officials who were unlawfully holding office.  See id. at 626 (Sen. Trumbull) (proposing enactment of the bill because “we know that hundreds of men are holding office who are disqualified by the Constitution” and the Constitution “provides no means for enforcing itself”).  [See Samarth Desai's more extensive treatment here.]

Second, and most importantly, “[t]he crucial consideration” in applying the Sea Clammers doctrine “is what Congress intended,” Smith v. Robinson, 468 U.S. 992, 1005 (1984).  And here there is no evidence that Congress in 1870, or in 1909 and 1948, intended to cut off other means of enforcing Section 3, such as the ways that some states were enforcing it in several former Confederate states.  The Court occasionally has found preclusion where Congress has “specifically foreclosed” the remedy in question either expressly or “by creating a comprehensive enforcement scheme that is incompatible with” the other means of enforcement.  Blessing v. Freestone, 520 U.S. 329, 341 (1997).  Yet the “Section 2383 or bust” scheme that (on Trump’s view) is now the exclusive statutory means of enforcement is not remotely as “comprehensive” or as effective as other methods of enforcement:  After all, even if an officer were to be convicted for violating section 2383, that wouldn’t disqualify the person from holding state offices at all!  Therefore, on Trump’s view, Congress has decided over the years that the states should be entirely precluded from enforcing Section 3, even as to state officers, thereby leaving no practical means for anyone to enforce Section 3 to prevent disqualified persons from serving in state offices if they insist on remaining in (or entering) office.  That is a deeply counterintuitive characterization of what Congress has “intended,” and as far as I know there is no evidence supporting it. 

Moreover, even if, contrary to what I’ve argued above, a plausible case could be made that Congress has “precluded” states from actually trying to enforce Section 3 (such as by filing a writ of quo warranto to remove an official from office, as happened recently in New Mexico with Couy Griffin), it is an even further stretch to assume that Congress has precluded states from declining to place the names of Section-3-ineligible presidential candidates on their ballots (especially their primary election ballots), because, as I’ve tried to stress in this and other posts, such a ballot exclusion is not a means of enforcing Section 3; nor is it remotely similar to the statutes that Congress has enacted, most of which have been actual enforcement provisions (e.g., the quo warranto provisions and section 2383’s disqualification clause). 

* * * *

Complete series of my posts on Trump v. Anderson:

[1] The Introduction to the brief states (p.3) that “[t]he state courts should have regarded congressional enforcement legislation as the exclusive means for enforcing section 3, as Chief Justice Chase held in In re Griffin,” and the first paragraph of Part III of that brief (p.39) describes the purported holding of Griffin’s Case to be that “congressional implementing legislation is the only way that section 3 may be enforced, and … state and federal courts are powerless to enforce section 3 absent congressional enforcement legislation under section 5” (emphasis in original).

[2] As for Virginia, the CRSCC (at page 10 of its reply brief) cites a law enacted in March 1867, which provided that in “rebel” states not yet admitted back into Congress and being governed by “provisional” miliary governments, “no person shall be eligible to any office under such provisional governments who would be disqualified from holding office” under the terms of the proposed Section 3.  See An Act regulating the Tenure of certain Civil Offices, § 6, ch. 154, 14 Stat. 428, 429 (Mar. 2, 1867).  The purpose of this provision was simply to insist that the disqualification rule of section 3 would apply to all offices in Confederate states controlled by military governments even before Section 3 itself became operative.  It did not prescribe any “proceedings, evidence, decisions, and enforcements of decisions, more or less formal,” Griffin’s Case, 11 F. Cas. at 26, for adjudicating eligibility or otherwise for enforcing the rule.  As for North Carolina (and Louisiana, which I discuss below), the CRSCC writes (reply brief at 16) “that Congress had mandated that these states, as a condition of their readmission as states, enforce by statute the terms of Section Three as to their state officials.”  That description is accurate—a statute Congress enacted two weeks before the Fourteenth Amendment was ratified did impose such a requirement on states as a condition of their readmission.  See An Act to Admit States, ch. 70, § 3, 15 Stat. 73, 74 (June 25, 1868).  But it, too, did not prescribe any “proceedings, evidence, decisions, and enforcements of decisions, more or less formal,” Griffin’s Case, 11 F. Cas. at 26, for adjudicating eligibility or otherwise for enforcing the disqualification.  The notion that these two statutes “authorized” Virginia, North Carolina, and Louisiana to “enforce” Section 3 in a way that was off limits to loyal states that had not seceded, and that such statutes satisfied Chief Justice Chase’s insistence that Congress prescribe the “proceedings, evidence, decisions, and enforcements of decisions, more or less formal,” for enforcement, is absurd.  (See also page 6 of Professor Tillman’s amicus brief, offering the same disingenuous argument.)  Congress’ obvious purpose in enacting these provisions was to guarantee that those states, like all others, would take steps, even before Section 3 became law, to enforce the rule that the Fourteenth Amendment would soon thereafter impose across-the-board and throughout the nation.

[3] If that is, indeed, what Congress (or its codifying agents) thought, they were almost certainly mistaken.  The better view is that the two amnesty statutes did not afford a broad license to officeholders to engage in insurrection or rebellion prospectively without any risk of disqualification—indeed, it’s not at all clear that Section 3 afforded Congress the power to issue such a prospective amnesty.  Moreover, in 1919 the House excluded the elected Victor Berger from membership in the House on grounds that he gave aid and comfort to U.S. enemies during the war in violation of Section 3—further evidence that Congress had not issued a prospective “amnesty” back in the Nineteenth Century.  See Baude/Paulsen at pp. 11-16; Cawthorn v. Amalfi, 35 F.4th 245 (4th Cir. 2022).  For all these reasons, it’s no surprise that Trump does not argue that the 1872 and 1898 statutes effectively eliminated the effect of Section 3.  Yet that (mis)understanding appears to have been the basis for Congress’s repeal of the federal misdemeanor provision and (in 1948) the federal quo warranto provision!

[4] Presumably (though his brief doesn’t discuss it), Trump’s theory would not “preclude” other federal actors’ ability to enforce Section 3 pursuant to their constitutional authorities.  For example, the House would remain able to impeach officers for violations of Section 3 (as it did with respect to Trump in 2021), and the Senate could convict them and thereby disqualify them from holding future office.  In addition, the Senate and House could refuse to seat an elected representative who is ineligible under Section 3—as the House did with Victor Berger in 1919.  The President and other appointing officials could remove ineligible persons from office—or decline to appoint them in the first instance on Section 3 grounds.  Presidential electors could refuse to vote for persons who they believe to be ineligible to be President due to Section 3.  And (although Trump himself might disagree), the Joint Session of Congress might be able to refuse to count presidential electors’ votes for an ineligible individual. 

Trump also does not address one other theoretical possibility, flagged in the amicus brief of Ryan Binkley, et al.—namely, that pursuant to District of Columbia Code § 16-3501, a statute Congress enacted in 1902 (see Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915)), the U.S. Attorney General or the U.S. Attorney for the District of Columbia could file a quo warranto action in the U.S. District Court for the District of Columbia “against a person who within the District of Columbia … unlawfully holds or exercises … a public office of the United States, civil or military.”  Such an action could only be initiated, however, if and when Donald Trump takes office, and it’s highly unlikely (to say the least!) that an AG or U.S. Attorney he appoints would ever bring such an action against the sitting President.

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