Thursday, February 15, 2024

A User’s Guide to Trump v. Anderson, Addendum II: The Justices’ Principal Concern at Oral Argument, and the Possibility of a Federalism-Based Resolution

Marty Lederman

The most remarkable thing about last Thursday’s oral argument in Trump v. Anderson was the extent to which the Justices coalesced around a single, shared federalism concern that wasn’t a prominent topic in the many briefs filed with the Court.  At one point or another during the argument, nearly all of the Justices signaled serious doubt about whether state officers or courts have the power to adjudicate whether Section 3 of the Fourteenth Amendment disqualifies someone from holding a federal office such as the presidency.  Like many other observers, I think it’s likely the Court will hold that the questions the Colorado Supreme Court purported to answer about Donald Trump’s involvement in an insurrection and his eligibility to hold a future federal office are questions are reserved for federal decision-makers, and that the Court almost certainly won’t itself adjudicate whether Trump is eligible to be President.   

Finding a path to such a holding, however, might be more difficult than it appears at first because of two (or three) competing considerations.  First, it’s likely that many or all of the Justices will want to preserve states’ authority to prevent rebels and insurrectionists from holding state offices, as New Mexico did in the Couy Griffin case currently pending before the Court.  Second, the Justices presumably will be careful to preserve, as much as possible, the states’ traditional broad authority to prescribe the means by which their allotted presidential electors are chosen, and the related authority to control the votes that such electors cast for President in the proverbial “electoral college” in December.  Relatedly, the Court will almost certainly aim to preserve the authority of states to prohibit ballot access for presidential candidates who are ineligible to serve as President on some other constitutional ground, such as their age or nation of birth.
Threading the needle to a decision that achieves most or all of these competing objectives will be tricky.  That’s not to say the Court won’t be willing or able to do it.  To the contrary, I think it’s the most likely result.  I’ll try to show in this post, however, that reconciling these disparate objectives could present the Court with difficulties that can only be overcome with some adroit maneuvering.  The Court might be able to craft a decision based upon a newly hatched federalism principle that’s somehow cabined to the context of Section 3 disqualifications for federal office (or, narrower still, only for the presidency).  Or, as I suggested in a post last week, the Court might find that the surest path to such a result could be a decision predicated upon protecting the constitutional right to vote of Trump supporters, though that, too, would raise complications of its own.
* * * *
If the oral argument is any indication, there appears to be unanimity among the Justices—or close to it, anyway—that states shouldn’t have a role, or at least not a decisive role, when it comes to determining Section 3 eligibility for a federal office such as the presidency.
This consensus perspective appears to be premised on at least three things:
First, it’s historically anomalous for a state to adjudicate Section 3 eligibility for a federal office—indeed, it’s virtually never been done before.  This was the point of Justice Thomas’ very first question to Jason Murray, and it was a recurring theme throughout the argument.  (Indeed, states have rarely excluded individuals from a presidential ballot on the basis of constitutional ineligibility of any kind.  As Derek Muller has explained, that practice appears to have begun in 1968, when California and New York refused to include the name of the 33-year-old Eldridge Cleaver to appear on their ballots for President (see Cleaver v. Jordan, 393 U.S. 810 (1968), denying cert. on Cleaver’s petition challenging California’s exclusion), and even since then it’s been far more common for states to permit ineligible candidates to be on the ballot than to exclude them.)
Second, at least outside the context presented in this case—i.e., the regulation of ballots for federal offices (the House and the Presidency)—the Constitution prohibits states from taking steps to enforce federal officials’ eligibility at all, whether on Section 3 grounds or otherwise.  This limitation is based upon what Justice Barrett referred to as a broader “principle of structural preemption,” reflected in the Court’s holdings in landmark decisions such as Tarble’s Case (1871) (a state judge may not issue a writ of habeas corpus for the discharge of a person held by a federal official) and M'Clung v. Silliman (1821) (a state court can't issue a writ of mandamus requiring federal officials to act).  The idea, of course, traces back to McCulloch v. Maryland itself, where the Court famously opined (in the words of a unanimous recent Supreme Court decision) that the Constitution generally “prohibit[s] States from interfering with or controlling the operations of the Federal Government.”   (On this principle of “intergovernmental immunity,” see, e.g., this recent OLC opinion, discussing whether state abortion restrictions can bind statutorily authorized actions of federal agencies.)  
Third, it would be particularly troubling if a single state, or a couple of states, were able to effectively resolve such a question of a person’s eligibility for federal office, especially when the office in question is the Presidency.  “[P]ut most baldly,” remarked Justice Kagan at oral argument, “I think that the question that you [counsel for the plaintiffs] have to confront is why a single state should decide who gets to be president of the United States.  In other words, … this question of whether a former president is disqualified for insurrection to be president again … sounds awfully national to me.  So whatever means there are to enforce it would suggest that they have to be federal, national means.”  Justice Kagan then proceeded to get right to the practical concern that is obviously worrying the Court, which has little to do with what Colorado does in its primary election (which won’t even have any effect on who the Republican nominee is), and much more to do with the prospect of a decision on Trump’s eligibility made by officials in a contested state for purpose of that state’s ballot in November:  The notion that “what the Michigan Secretary of State did is going to make the difference between, you know, whether Candidate A is elected or Candidate B is elected … seems quite extraordinary, doesn't it?”
In response to Justice Kagan’s concern, Jason Murray (counsel for the Anderson respondents) wisely signaled that it’s not the plaintiffs’ objective to have Colorado, or Wisconsin, or Michigan, unilaterally determine Trump’s eligibility:  They brought this case so that the Supreme Court itself could made a definitive, uniform determination for the nation.  (Recall that the Anderson respondents urged the Court to grant the Trump and Republican Party petitions for certiorari because “the weighty Fourteenth Amendment questions here warrant the Court’s attention even in the absence of a split, and this case presents an ideal vehicle for resolving them.”)  
Not surprisingly, this response—which was almost certainly the best answer Murray could offer—will almost certainly not be sufficient to prevent reversal, because many or most of the Justices appear to be even more wary of the U.S. Supreme Court resolving whether Trump is eligible to hold office than they are of allowing one or two state courts or state executive officials to decide that question.  For example, they expressed concerns about whether the Court would be bound by factual determinations of a single court, or would be limited to reviewing the particular record that had been developed below in whichever case happens to be the one that first reaches the Court.  Murray was prepared with responses to these sorts of concerns:  He explained, correctly, that there’s not a great deal of dispute concerning the facts about what occurred on January 6, 2021; that the Colorado district court gave Trump every opportunity to introduce whatever evidence he wished to include in the record (including his own testimony, which he declined to offer); and that, at least with respect to the one question on which there is a substantial factual dispute—whether Trump intended to incite his followers to engage in a violent protest at the Capitol—the Supreme Court could review the evidence independently, much as an appellate court must do in “determin[ing] whether the record establishes actual malice with convincing clarity” in a defamation suit involving a public figure.  Bose Corp. v. Consumers Union of U.S., 466 U.S. 485, 514 (1984).  (At the cert. stage, Murray objected to Trump’s suggestion of such independent review, but it appears he has now wisely abandoned his insistence on “clear error” review.)
Murray’s efforts to provide assurances about the Court’s own possible adjudication of the merits were thus quite reasonable, at least on the surface.  After all, it would hardly be a novel thing for the Supreme Court to review adjudications of even very sensitive questions made by lower (or state) courts.  Imagine, for example, that a federal jury had convicted Trump of “engag[ing] in [an] …  insurrection against the authority of the United States or the laws thereof” in violation of 18 U.S.C. 2383, which would make him “incapable of holding any office under the United States,” and Trump had appealed that verdict all the way up to the Supreme Court.  In such a case, the Court would undoubtedly agree that it had the responsibility to assess whether, e.g., the trial court had charged the jury with the proper legal standards and whether the evidence supported the jury’s finding that the elements of the offense were established beyond a reasonable doubt (whether or not it applied a Bose-like standard of independent review on questions of scienter).  The Court wouldn’t avoid the questions or suggest that it’s inappropriate for a court to answer them.  
It’s not immediately obvious why this appeal from an adjudication by the Colorado Supreme Court should lead to any different result.  Nevertheless, many of the Justices appeared to be reluctant to resolve the question of Trump’s eligibility themselves in a case coming to them in this posture (as opposed to on appeal from a federal jury verdict based on proof beyond a reasonable doubt, in a prosecution approved by, e.g., the U.S. Attorney General), presumably because of some of the reasons I discussed in this post
In addition to those possible reasons, the Chief Justice was upfront about his primary concern, in what may have been the most revealing and intriguing part of the oral argument, concerning what he called the “plain consequences” of Murray’s position.  “If Colorado's position is upheld,” said the Chief, “surely there will be disqualification proceedings on the other side, and some of those will succeed. …  I would expect that … a goodly number of states will say, whoever the Democratic candidate is, you're off the ballot, and others for the Republican candidate—you’re off the ballot. …  That's a pretty daunting consequence.”  Murray understandably responded that “the fact that there are potential frivolous applications of a constitutional provision isn't a reason” for the Court not to address a serious case such as this one.  The Chief Justice quickly interjected, however, to say that although Murray might think those follow-on cases would be frivolous, “the people who are bringing them may not think they're frivolous,” particularly because “‘insurrection’ is a broad, broad term,” and “other states may have different views about what constitutes insurrection.”   
In this colloquy, the Chief Justice appeared to be channeling the amicus brief filed on behalf of former Representative Peter Meijer of Michigan, who was one of the ten Republican members of the House who voted for Trump’s impeachment.  A section heading of that brief is entitled “If the Majority Opinion Stands, Section Three Will Be Ripe for Leveraging as a Tool to Strike Political Opponents from the Ballot.”  In it, Meijer warns that an affirmance here would “enable[] courts (and secretaries of state) to loosen [the] meaning [of Section 3] until cries of ‘insurrection’ become as common as negative advertisements and smear campaigns that are near-ubiquitous in our current political discourse,” and “will open the floodgates to tit-for-tat challenges without predictable standards.”  “Left untouched,” the brief ominously predicts, “the Colorado Supreme Court majority opinion will open the door to widespread elimination of candidates for federal and state offices, so long as courts or secretaries of state can plausibly call that candidate’s previous activities as engaging in (or even providing aid or comfort to the participants of) insurrection. ...  [I]t would morph Section Three of the Fourteenth Amendment into a tool for strategic gamesmanship, ever ripe for political abuse.”  Meijer’s brief even goes so far as to offer examples of Democratic officeholders, such as Rashida Tlaib, Joe Biden, Kamala Harris, and Gretchen Whitmer, who might be the targets of such “insurrection”-based exclusions from ballots by Republican state officials.
Representative Meijer’s parade of horribles would, of course, be a clear abuse of Section 3 by the Republican officials in question.  And, in fairness, Meijer appears to agree:  He doesn’t argue that those Democratic officials did engage in insurrections.  His point is simply to forecast that, in today’s political climate, state Republican officials may not hesitate to act on the basis of such baseless allegations, thereby precipitating a potentially endless string of “engaging in insurrection” challenges that the courts would have to adjudicate, perhaps in the heat of an election season and on an expedited basis.    
In one of my earlier posts, I expressed some concern about any Court decision that might involve establishing the metes and bounds of the terms “insurrection” and “engage in,” because the implications of any particular definitions would be uncertain and potentially fraught.  It’s worth recalling, for example, that on one of the only occasions where the federal government has ever indicted someone under the Insurrection Act (what’s now 18 U.S.C. § 2383), it did so to prosecute leaders of the Pullman Strike, where the court instructed the jury that an “insurrection” includes any “open and active opposition of a number of persons to the execution of law in a city or state.”  In re Charge to Grand Jury62 F. 828, 830 (N.D. Ill. 1894).  That sort of definition, which isn’t too far removed from what the Anderson respondents propose in this case, could be very problematic in ways that would be difficult to foresee from this vantage point.  I therefore I suggested that the Court try to avoid issuing any holdings on those questions—and should in particular, be careful about embracing the broad definitions of “insurrection” proposed by the Anderson plaintiffs and some of their amici:

  • Like the Colorado Supreme Court, I don’t think that “insurrection” was well-defined when the Fourteenth Amendment was enacted or that there’s any sure-fire way to define it now that would clearly distinguish it from rebellion, on the one hand, and politically motivated violence short of insurrection, including riots, on the other.  If the U.S. Supreme Court were to settle upon and announce a definition in this case—particularly one as broad and open-ended as that in Noah Webster’s 1857 American Dictionary of the English Language (which included “the open and active opposition of a number of persons to the execution of law”)—such a ruling could have unanticipated downstream ramifications for other cases that are materially different from this one, and implications for statutes that use the term, including one that gives the President authority to use military forces to suppress insurrections in certain circumstances [citing 10 U.S.C. 251].  
If, however, the Court were to adjudicate the question of whether Section 3 disqualifies Donald Trump from serving in federal office, it would almost certainly have to declare something about the meaning of “insurrection” and “engaging in.”  I suppose the Court could emulate the Colorado Supreme Court and hold merely that whatever the full scope of those terms might be, the events of January 6 qualify.  But such a limited, case-specific holding would only invite the sorts of follow-on cases that Meijer forecasts.  And therefore, as the Chief Justice remarked at oral argument, the Court would sooner or later (probably sooner) “have to develop rules for what constitutes an ‘insurrection,’” as well as for what constitutes “engaging in” it.
I think it’s fairly evident that, justifiably or not, the Justices have very little appetite for starting down that road toward a jurisprudence of insurrection.  It’s clear that they would much rather issue a holding that some sort of “principle of structural preemption,” as Justice Barrett described it, precludes states from adjudicating and enforcing individuals’ eligibility for federal office, thereby preserving the ability of states to enforce Section 3 as applied to state officeholders.
The difficulty with such a holding, however, is that although the states lack any power to decide whether sitting federal officers may remain in office (a point Murray conceded), the Constitution does assign the states a central regulatory role in the process by which certain federal officers—the President and members of the House—are selected in the first instance.  Moreover, the Court has already held that the states’ Article II authority to determine the “manner” of appointing presidential electors includes the authority to cabin the discretion of those electors when it comes to casting their votes for President in the “electoral college” (Chiafalo).  (Justice Thomas and Justice Gorsuch concurred separately in Chiafalo to express the view that that authority derives from state law and isn’t limited by the federal Constitution, but the upshot is the same.)  And states have exercised that authority, without controversy—and with the approval of jurists such as then-Judge Gorsuch, see Hassan v. Colorado, 495 F. App’x 947, 948 (10th Cir. 2012)—to refuse to include on their general election ballots the names of persons who are ineligible to be President on other grounds, such as that they were too young to hold the office or were born in another nation.
There was a very interesting exchange about such issues between Justice Alito and Jason Murray at the oral argument. Justice Alito hypothesized a case in which it appeared that a majority of the voters of a state were inclined to cast their ballots for someone who is on the November ballot but who is, in the view of most state legislators, ineligible to be President because he’s “an insurrectionist.”  Alito asked Murray whether the legislature could enact a law, before the election, requiring its electors not to vote for that person when they cast their electoral ballots (in the same way that the legislature presumably could enact a law prohibiting its electors from casting votes for a foreign-born person or a 27-year-old or someone who’s already been elected twice to be President).  Murray responded that the legislature “probably could under this Court’s decision in Chiafalo, where this Court emphasized that for much of American history, state legislatures picked … their own electors.”
Murray may well have been right about that.  Let’s test the point by changing the hypo a bit.  Assume State X passes a law to do something no state has done since 1876—namely, to eliminate its popular vote for President and to authorize its legislature, or its Governor, to choose the state’s presidential electors instead.  (Florida did just that in 1868, for example, just after the ratification of the Fourteenth Amendment:  When it appeared that a majority of the Florida electorate might vote for the Democratic candidate, Horatio Seymour, the state legislature passed a bill, which the Governor signed, transferring the choice of electors to the legislature, and the legislature thereafter voted to appoint electors whom they knew would vote for Ulysses Grant.)  Further assume, for the sake of argument, that there are five major political parties that have nominated five different candidates for President:  (i) Barack Obama; (ii) Arnold Schwarzenegger; (iii) Olivia Rodrigo; (iv) a former Senator who acknowledges having engaged in a rebellion or insurrection against the United States; and (v) a fifth person who suffers from none of the disqualifications that apply to the other four.  Presumably the legislature of State X could appoint electors who are committed to voting for the fifth candidate, and could do so expressly because the legislature has concluded that the other four candidates are constitutionally ineligible to serve.
If that’s correct—and I think it is—then may State Y, which uses a popular election (as all states have done since 1880), accomplish the same result by excluding the names of the first four candidates from the ballot that it distributes to voters?
The answer, I think, is that yes, the state can do that, but only if the ballot exclusion in question does not violate the “right to vote” of those who wish to vote for the ineligible candidates—a question that would be addressed under the balancing rubric described in cases such as Anderson v. CelebrezzeBurdick v. TakushiWilliams v. Rhodes, and Democratic Party v. Wisconsin ex rel. La Follette.  It is now established, in other words, that a state’s broad power to choose presidential electors of its liking, and to limit their discretion when they cast their electoral votes, is tempered once the state elects to allow its citizens to vote for President, because the rights of the voters must be balanced against the state’s interests in restricting ballot access (or otherwise regulating election procedures).  The Court first explained this in Williams v. Rhodes (1968), where it held that Ohio could not require a new party to obtain the signatures of a huge percentage of voters, long before the election, as a condition of having its presidential candidate listed on the state’s ballot.  Ohio argued that by virtue of its Article I authority to appoint electors “in such Manner as Legislature thereof may direct,” it had “absolute power to put any burdens it pleases on the selection of electors.”  393 U.S. at 29-30.  In response, the Court acknowledged that “[t]here, of course, can be no question but that [the Electors Clause of Article I] does grant extensive power to the States to pass laws regulating the selection of electors.”  Even so, the Court explained, that authority “may not be exercised in a way that violates other specific provisions of the Constitution,” and therefore “we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions,” including the Equal Protection Clause.  Id. at 30; accord Anderson v. Celebrezze, 460 U.S. at 794-95 n.18. 
At oral argument, both Justice Kagan and Justice Kavanaugh hinted that voting rights cases such as Anderson might be germane to the Court’s decision in Trump v. Anderson (even though the argument was barely preserved in the Trump’s brief and is poorly made in the CRSCC briefs).  Justice Kavanaugh asked Murray:  “What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide?  Because your position has the effect of disenfranchising voters to a significant degree.”  And Justice Kagan invoked the point the Court stressed in Anderson, 460 U.S. at 794-95, that states would be hard-pressed to justify “a significant state-imposed restriction on a nationwide electoral process,” especially since “the State has a less important interest in regulating Presidential elections than state-wide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries.”
As I explained in much greater detail in a post last week, I doubt the Court would hold that a state would violate anyone’s right to vote by excluding a 27-year-old, or a foreign-born candidate, from its presidential ballot, whether in the primary or the general election.  I suggested, however, that the calculus under Anderson v. Celebrezze and other “right to vote” cases might be different when it comes to the ballot exclusion of candidates on Section 3 grounds, at least in cases where there’s significant, good-faith disagreement as to whether the person in question is eligible to be President (as opposed to hypothetical case the Chief Justice posed at oral argument in which the person concedes that he’s an ineligible insurrectionist).
Justice Kagan appeared to be leaning in that same direction at oral argument.  She specifically asked the attorney representing the Colorado Secretary of State whether there might be some basis for the Court to treat this ground of ineligibility differently from the others, such that a state could take steps to prevent the casting of electoral votes for a 27-year-old (see Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014)), or someone born in Guyana (as the candidate was in the Hassan case Judge Gorsuch decided), but would be precluded from using its Article II authority to disfavor someone alleged to be ineligible to serve under Section 3 of the Fourteenth Amendment:  Perhaps the Section 3 “engaged in insurrection” question, she suggested, is materially different because it’s “just more complicated and more contested and, if you want, more political” than the question of someone’s age or place of birth.
For the reasons I discussed in my earlier post, I think that this could potentially be a basis for the Court to draw a distinction that would, on the one hand, permit states to enforce Section 3 as applied to state offices, and permit states to exclude candidates from its ballots for federal office on ineligibility grounds other than Section 3, but nevertheless preclude states from removing the names of candidates from ballots for federal office based upon an assessment of state actors that the person is disqualified under Section 3 in those cases where such eligibility is genuinely or sufficiently contested.
As I acknowledged there, however, it would be a challenge for the Court to articulate a standard for assessing whether the disqualification question is sufficiently "clear" or "contested" in any given case to tip the balance of interests against the state in the Anderson analysis.  (And, again, the Court might need to explain why, where there are genuine disputes, the Court itself couldn’t resolve those disputes, as it has adjudicated other state ballot restrictions for federal office.)  Therefore I remain very uncertain about whether the Court will be able to thread the needle to draw the sort of distinction Justice Kagan was pondering.
There could be a further looming question, as well:  If the Court chooses (as it almost certianly will) not to embroil itself in deciding “merits” questions of when Section 3 disqualifies candidates from federal office, and it also precludes states from excluding candidates’ names from ballots on that ground, how else could Section 3 be enforced against an insurrectionist or a rebel who’s elected to be President, other than by way of impeachment and Senate conviction or a prosecution under 18 U.S.C. § 2383?  
One possibility is that Congress could enact legislation to implement Section 3 of the Twentieth Amendment by prescribing a means by which Congress could, before inauguration, assess “if the President-elect shall have failed to qualify” (in which case “the Vice President-elect shall act as President until a President shall have qualified”).  
Enactment of such a statute this year, however, is obviously unlikely.  And that probably leaves only two remaining options (again, apart from a conviction by the Senate or a § 2383 jury verdict).  The first would be a decision by the Joint Session of Congress on January 5, 2025 to refuse to count electoral votes cast for someone who has engaged in an insurrection (or is otherwise disqualified to hold the office under Section 3).  Yet that possibility, too, is highly uncertain, because it’s an open question whether either the Twelfth Amendment or the Electoral Count Reform Act precludes the Joint Session from refusing to count electors’ votes on grounds that the person is ineligible to serve as President or Vice President.  (I think the better answer is that the Joint Session could refuse to count votes on that basis—i.e., that the Twelfth Amendment doesn’t require Congress to count electoral votes for someone who can’t serve, and that the Joint Session may consider electoral votes cast for such a person to be not “regularly given” for purposes of 3 U.S.C. § 15(d)(2)(B)(ii)(II)—but that, too, would be hotly contested and there’s no controlling authority on it.)
The final possibility is that if Donald Trump wins more than 269 electoral votes, the Joint Session certifies him the winner, and he is inaugurated, then it’s almost certain some plaintiffs will sue to enjoin the operation of his actions as President actions, such as the imposition of IEEPA sanctions, on the ground that Trump may not hold office and is therefore acting ultra vires.  The “de facto officer” doctrine probably wouldn’t be an answer to such a suit to the extent the plaintiff is seeking forward-looking relief.  And therefore the federal judiciary would be confronted with the substantive question of the eligibility of a sitting President to hold office, without an antecedent adjudication of the question by any states.  I assume the Justices wouldn’t relish that scenario.  But perhaps they’d simply prefer to cross that bridge if and when they get to it.   

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