Tuesday, March 05, 2024

What's dividing the Justices (and other initial reactions to the Court's decision in Trump v. Anderson)

Marty Lederman

Here are a few preliminary thoughts about the Court’s decision yesterday in Trump v. Anderson.  The only one that's likely to be of any lasting significance is the final item, concerning what divided the five Justices in the majority from the four who wrote separately.  So assuming that’s what most interests you, you can skip ahead to reaction number 7, below.
1.  As I explained on January 28, from all that appears in the record, it seemed as if the controversy had become moot, given that Colorado already included Donald Trump’s name on its primary ballot, which has been sent or handed out to many voters and (presumably) returned by many of those voters to state officials.  I was hoping that one or more of the parties would explain to the Court why the case wasn’t moot but, alas, none of them said a word about it in their briefs or at oral argument.  In theory, the Court “has an obligation to satisfy itself … of its own jurisdiction," Steel Co. v. Citizens for Better Environment, 523 U.S. at 95, whether or not the parties raise or contest the issue.  Perhaps the Justices coalesced around an understanding about why the case wasn’t moot but, if so, they didn’t whisper a word about it in their opinions.  (Just to be clear:  I’m not surprised.)  Thus it becomes an interesting little mystery for future cases, Fed Courts courses, and Hart & Wechsler.  (I also raised the question whether and on what grounds the Court had statutory jurisdiction under 28 U.S.C. § 1257(a)—another jurisdictional prerequisite that the parties and the Court (not surprisingly) did not address.)  
2.  For what it's worth, I think the Court probably reached the right result with respect to reversing the decision of the Colorado Supreme Court, albeit not quite for the right reasons.  The Court’s opinion would have been more persuasive had it relied upon the argument, based on Anderson v. Celebrezze and related precedents, that Colorado lacked a sufficient basis for limiting the constitutional right of Trump supporters to cast their ballots for him—though even that would have raised tricky questions, as I noted here
Instead, as I (and many others) predicted after the oral argument, the Court used the Anderson line of cases as only one part of a newfangled federalism-based constraint on the ability of states to “enforce” Section 3 of the Fourteenth Amendment with respect to federal offices.  The most remarkable thing about the Court’s federalism-based resolution, which all nine Justices approved in large measure, is that it was not among the ten or more arguments that the parties and the numerous amici presented to the Court, nor is it anything discussed in the many law review articles about Section 3.
I find the Court’s rationale to be unconvincing in two principal respects:  First, as I discuss in Points 5 and 6 below, I think some of the Court’s premises—about what Colorado was doing here, and about states’ authority to decide how to select presidential electors—are erroneous.  Second, I agree with the concurring Justices that to the extent the analysis in Section II-A of the per curiam opinion suggests that the Fourteenth Amendment itself provides some basis for concluding that states have to treat this ground of ineligibility for holding federal office differently than they can treat other federal grounds of disqualification, that’s not right.
Nevertheless, the Court’s resolution was ingenious, in that it reached the right result while not adopting any of the lousy arguments Trump himself had offered; allowed the Court to avoid opining on questions related to Trump’s constitutional eligibility to serve again as President (or in any other covered office); and (as I explained hereat the same time preserved the power of states to do two other things that presumably don’t trouble the Justices nearly as much as the prospect of a state ballot exclusion on Section 3 grounds in November—namely, (i) to exclude persons from state office on Section 3 grounds and, probably, (ii) to exclude candidates for federal office from their ballots on federal constitutional grounds other than Section 3 (e.g., being 27 years old or being born outside the United States), as then-Judge Gorsuch held in the 2012 Tenth Circuit decision in Hassan v. Colorado.  
Because the Court expressly preserves the states’ power to enforce Section 3 as to state offices, I think we can expect the Court to deny certiorari in the pending Couy Griffin case (or, at most, to GVR it).  (Contrary to the view of some observers, the Court most certainly did not hold that Chief Justice Chase was right in (the earlier, 1869) Griffin’s Case.  The opinion cites Griffin's Case only for very limited and uncontroverted proposition, which "the Colorado Supreme Court itself recognized," that it's necessary for someone to “‘ascertain[] what particular individuals are embraced’” by Section 3 before they can be excluded from office.  Indeed, Griffin’s Case was about a state office, and the Court in Trump v. Anderson expressly holds that no congressional legislation is necessary in order for a state to enforce Section 3 as applied to state offices.  If anything, then, the Court undermined the holding of Griffin’s Case.)  

As for the latter state power—i.e., to deny ballot access to candidates who are ineligible on other federal grounds—it is certainly now subject to more substantial litigation risk than it was yesterday.  But I expect the Court would distinguish Trump v. Anderson if such a case ever reaches the Court.  However the courts ultimately resolve that question, it’s not of great practical importance:  States have often included on their ballots candidates who are clearly ineligible to hold the federal office for which they are running, including the presidency.  
3.  To state the obvious:  This outcome was foreordained.  Indeed, most close observers of the Court predicted that the decision would be unanimous or close to it.  The assumption underlying the challengers’ strategy—that the Supreme Court itself might actually opine on the substance of the Section 3 question and declare that Donald Trump is ineligible to serve as President—was deeply misguided from the start and has, not surprisingly, turned out to be counterproductive.  
4.  Thankfully, no Justice wrote to give any credence to the absurd arguments that the President isn’t an “officer of the United States” or that the presidency isn’t an office “under the United States.”  Perhaps, then, those arguments will be re-consigned to the obscure corners of implausible scholarship from whence they came.
5.  The central, necessary predicate of the majority’s rationale is (p.6) that “[t]his case raises the question whether the States, in addition to Congress, may also enforce Section 3 … with respect to federal offices, especially the Presidency.”  Not that it much matters now, but in fact that’s not a question the case raised.  As I’ve explained, Colorado did not purport to be “enforcing” Section 3 by “disqualify[ing] persons holding or attempting to hold” office or in any other way; nor did the State purport to be asserting a “power over governance” that “extend[s] to federal officeholders and candidates,” id.; nor did the Colorado Supreme Court assert (p.8) that states’ constitutional powers “to conduct and regulate congressional and Presidential elections, respectively [see Art. I, § 4, cl. 1; Art. II, § 1, cl. 2] … implicitly authorize the States to enforce Section 3 against federal officeholders and candidates.”  (Indeed, and as I further explained in that earlier post, Colorado wasn’t even exercising its federal constitutional authority over presidential elections at all here—it was merely acting pursuant to state law to regulate the manner in which it uses its primary elections to recommend delegates to the Republican Party convention.)   
To be sure, as the per curiam opinion notes (p.7), the private respondents “maintain that States may enforce Section 3 against candidates for federal office.”  But Colorado itself didn't maintain anything of the sort.  That’s why the Court should have predicated its decision on Colorado’s violation of Trump supporters’ right to vote, rather than on a rationale that states can’t “enforce” a constitutional provision that Colorado didn’t purport to be “enforcing” here. 
No matter:  The upshot is the same, under either rationale--namely, that states can’t exclude a federal candidate from their ballots, in the primary or general election, based upon a determination that Section 3 disqualifies the person from holding the federal office in question.
6.  A significant portion of the Court’s reasoning is peculiar to presidential elections—see pages 11-12, beginning with “state enforcement of Section 3 with respect to the Presidency would raise heightened concerns.”  The Court describes the possibility that “a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).”  The resulting “patchwork” of state presidential ballots (presumably at the general election stage) would, according to the Court, “‘sever the direct link that the Framers found so critical between the National Government and the people of the United States’ as a whole” (quoting U.S. Term Limits v. Thornton).  Moreover, this “patchwork” of state treatment of a presidential candidate “could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.”  “Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.”  
Moreover, there’s little doubt that the four “concurring” Justices were most influenced by these considerations about presidential elections.  See pages 2-3 of the Sotomayor/Kagan/Jackson concurrence.  The Court’s rationale concerning the presidency, they conclude, “provides a secure and sufficient basis to resolve this case.  To allow Colorado to take a presidential candidate off the ballot under Section 3 would imperil the Framers’ vision of ‘a Federal Government directly responsible to the people’” (quoting Term Limits; emphasis added).  “The Court,” they write, “should have started and ended its opinion with this conclusion.”  Justice Barrett similarly writes that “I agree that States lack the power to enforce Section 3 against Presidential candidates.  That principle is sufficient to resolve this case, and I would decide no more than that.”  (Emphasis added.) 
There are at least [UDATE: three] important things to note about these presidency-focused passages.
First, as the Anderson respondents' counsel noted at oral argument, it was not their objective to have Trump on some ballots but not others, in a "patchwork" fashion; the whole point of their suit in Colorado was to tee up the question of Trump's eligibility for a singular authority to resolve--namely, the U.S. Supreme Court itself--in hopes that the Court's resolution would settle the matter on a national basis.  I explained earlier that I'm not sure a pronouncement by the Court that Trump is disqualified to serve as President would have settled the matter nationwide.  But more importantly, the respondents simply miscalculated in assuming that the Court would ever be inclined to adjudicate the merits of the Section 3 question itself.

Second, the Court's passages about states' authority to control presidential ballots are deeply ahistorical (and nonoriginalist).  The Constitution affords the states extraordinary discretion about how to choose their presidential electors, which might well result in a “patchwork” of methods—and even a patchwork of means of assessing possible Section 3 ineligibility.  States may, for example, authorize their legislatures to appoint electors, which was a common practice early in our constitutional history.  The Florida legislature, for example, chose that state’s electors in 1868, shortly after ratification of the Fourteenth Amendment, in order to ensure that its electoral votes would be cast for Ulysses S. Grant.  And just after its admission to the Union, Colorado itself provided for its legislature to choose the state’s three electors in the election of 1876, perhaps so as to foreclose the possibility that the people of Colorado might opt for Samuel Tilden over Rutherford B. Hayes—which would have changed the results of the national election.  Where a state legislature chooses its electors, the legislators (and the electors) surely can make their decisions based upon whether they believe certain candidates are ineligible to hold federal office under Section 3 (or for many other reasons).  
Moreover, as my colleague Josh Chafetz noted on X yesterday, state presidential ballots often differ in terms of which candidates' names appear:  “Just a reminder that states have different people on the presidential ballots all the time.  Cornel West will likely be on some ballots but not others.  Ditto for RFK, Jr.”  
It's highly unlikely the Supreme Court would hold that all state presidential ballots must be uniform—or that a state could not once again enact legislation to remove the voters’ power to choose presidential electors.  Such practices, however, are in considerable tension with the implications in yesterday’s opinion that the Constitution might require some degree of national uniformity when it comes to the states’ treatment of the vote for presidential electors.  (And it’s especially hard to reconcile those paragraphs of the per curiam opinion with Justice Thomas’s separate opinions in Term Limits and Chiafalo, where he insists upon the authority of states to control the content of their presidential ballots.)
Third, there's some tension in the per curiam opinion about whether its analysis of the presidency is necessary to its ultimate holding.  On the one hand, at the end of the opinion the majority--apparently channeling former Justice Breyer, see, e.g., U.S. v. Comstock, 560 U.S. at 133, 149--insists (p.13) that "it is the combination of all the reasons set forth in this opinion ... that resolves this case" and that, "[i]n our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches" (emphasis added).  If that were true, then the Court's holding would not extend to other federal offices, because one of the reasons it offered is specific to the presidency.  On page 6 of the opinion, however, the majority writes that “[w]e conclude that … States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”  (The significance of "especially" is something of a mystery.)  And at the bottom of page 12 the Court similarly writes that the “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.”  (Emphasis added in both places.)  The per curiam opinion doesn't make any effort to reconcile these inconsistent statements.  Even so, I think it's fair to assume that the Justices in the majority surely believe they've issued a holding that applies to all federal offices, not only to the presidency.

There’s a suggestion at the top of page 13 that “[a]ll nine Members of the Court agree” with the broader, "all federal officeholders" statement on page 12, but that's clearly mistaken.  The joint concurrence's rationale is expressly limited to the presidency.  And although Justice Barrett purports to join Part II-B of the Court’s opinion, which includes the statement on page 12, she specifically writes that she agrees with the other concurring Justices on the “principle” that “States lack the power to enforce Section 3 against Presidential candidates,” which is “is sufficient to resolve this case, and I would decide no more than that.”
So that’s one difference among the Justices:  Four of them would have reserved the question about whether a state could, for instance, refuse to include on its ballot a candidate for Senate or the House who the state has deemed to be ineligible for federal office under Section 3.  But five other Justices did not do so, notwithstanding their extensive comments about the need for uniformity when it comes to presidential ballot practices.  The Court’s holding, therefore, appears to be that states may not “enforce” Section 3 as to any and all federal officers and candidates for federal office.
7.  And that brings us, finally, to the major difference among the Justices—the one that prompted four of them to concur separately and that prompted Justices Sotomayor, Kagan and Jackson to note their strong objections.
Some observers have read the Court’s opinion to preclude Congress itself from taking steps to prevent individuals from taking or holding federal office on Section 3 grounds unless and until Congress enacts further “enforcement” legislation—and, in particular, to forbid the two houses of Congress from refusing to count electoral votes for Trump on Section 3 grounds when they convene in “Joint Session” to count electoral votes on January 6, 2025.  I don’t think that’s right.
In fairness, that broad reading finds support in some statements in the joint concurrence’s characterization of the per curiam opinion, particularly this passage on page 2:  “The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment.  In doing so, the majority shuts the door on other potential means of federal enforcement."  (Emphasis added.)  
The majority opinion, however, doesn't contain any such categorical “announce[ment].”  Nor does the per curiam opinion specifically “opine[] on how federal enforcement of Section 3 must proceed.”  Id. at 4 (emphasis added).  The joint concurrence also (pp. 3-4) cites page 5 of the per curiam opinion for this proposition:  “Congress, the majority says, must enact legislation under Section 5 prescribing the procedures to ‘“‘ascertain[] what particular individuals’”’ should be disqualified” (internal quotation from Griffin’s Case).  The cited passage on page 5 of the majority opinion, however—the one quoting Griffin’s Case—doesn’t mention Congress, or section 5, or enforcement legislation, at all; it merely states that because Section 3 “works by imposing on certain individuals a preventive and severe penalty,” “[i]t is therefore necessary … to ascertain[] what particular individuals are embraced by the provision” (internal quotation marks removed).  The joint concurrence likewise (on page 5) states that the majority has articulated a “requirement that a Section 3 disqualification can occur only pursuant to legislation enacted for that purpose” (emphasis added).  Again, however, the per curiam opinion contains no such statement.  (To be sure, as the concurrence notes (p.5), page 5 of the per curiam opinion does say that “Congress’s Section 5 power is critical when it comes to Section 3.”  As the concurrence notes, however, it isn’t clear what the word “critical” “means in this context.”)  
All of this leaves the reader (this reader, anyway) with the distinct impression that the concurrence might have been drafted in response to an earlier, more categorical and more restrictive version of the per curiam opinion, in which case the concurring Justices’ criticisms might have had the salutary effect of causing the majority to cut back on what its opinion had to say about federal enforcement.  Nevertheless (if this speculation is correct), the criticisms remained in the joint concurrence, even after the majority opinion was tweaked to be more equivocal (i.e., less express) about the range of possible means of federal enforcement of Section 3 as applied to federal offices.  

But that's merely speculation on my part--a bunch of different scenarios are also possible.  And the important point is that all four dissenters concluded that the final version of the per curiam opinion bodes ill for at least some forms of federal enforcement of Section 3, even though that opinion doesn’t ever state in so many words that enforcement legislation is necessary before anyone other than states can enforce Section 3 as applied to federal offices.  

So which forms of federal enforcement are the source of the concerns?

I strongly doubt that the disagreement centers on possible enforcement by the Congress itself, pursuant its existing constitutional authorities.  The per curiam opinion acknowledges (p.10) that the House and the Senate can, for example, exclude or expel members from their bodies for Section 3 violations—something they did in the years immediately following ratification of Section 3.  And there isn't anything else in the per curiam opinion suggesting that, for example, the Senate could not convict and disqualify someone for a Section 3 violation—something that 57 Senators voted for in the second Trump impeachment trial—absent enforcement legislation.  The majority opinion also does not mention, let alone call into question, the possible power of the Joint Session of Congress, pursuant to the Twelfth Amendment and/or the Electoral Count Reform Act, to refuse to count electoral votes of a person who is disqualified under Section 3—or possible action by Congress, even absent enforcement legislation, to enforce the prescription of section 3 of the Twentieth Amendment that “if the President elect shall have failed to qualify [by Inauguration Day], then the Vice President elect shall act as President until a President shall have qualified.”  There are, of course, open questions about whether Congress has the power to take such actions under the Twelfth Amendment (and the ECRA) and the Twentieth Amendment.  But I think it’s fair to assume the Court would answer those questions by looking to those amendments (and the ECRA) themselves, and would not impose a Section-3-specific constraint on a congressional power that the Constitution and statutes otherwise authorize.  Nothing in the per curiam opinion, in any event, suggests otherwise.  (The majority opinion does quote Senator Trumbull's statement in 1869 that because the Constitution provided "no means for enforcing" Section 3, Congress should enact implementing legislation.  That statement, however, was addressed to the problem Trumbull was discussing (quoted in the per curiam), namely, the "hundreds of men" holding state office in violation of Section 3.  Enforcement legislation was, indeed, needed as a practical matter if the federal government was to be able to enforce Section 3 as to those state officials.  Trumbull did not say anything, however, to suggest that the federal government could not enforce Section 3 as applied to federal offices absent implementing legislation--indeed, Congress had already been enforcing it by excluding rebels from the House and the Senate, as the per curiam decision itself acknowledges.)  
More to the point, I’d be very surprised if the four concurring Justices' criticisms were motivated by a desire to preserve such congressional actions to disqualify Donald Trump from office—hypothetical legislative actions that the concurrence never mentions.  The concurring Justices likely realize (as I wrote here) that if Trump receives more than 269 electoral votes, there’s virtually no chance that majorities of both houses of Congress would refuse to count those Trump electoral votes or try to enforce section 3 of the Twentieth Amendment by taking some (unknown) steps to prevent his inauguration.  
Nevertheless, the concurring Justices obviously are concerned about a different way in which the Section 3 question might be raised and decided by federal actors—namely, by future judicial adjudication of Section 3 questions if they arise in cases after January 20th, if and when executive actions by Trump or by alleged insurrectionists he appoints are challenged "defensively."  The joint concurrence specifically offers two such examples (p.5):
[T]he majority … forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.  The majority further holds that any legislation to enforce this provision must prescribe certain procedures “‘tailor[ed]’” to Section 3, ante, at 10, ruling out enforcement under general federal statutes requiring the government to comply with the law.
The second of these two sentences is, I think, a not-so-veiled reference to a challenge to agency action under the Administrative Procedure Act, or pursuant to an Ex Parte Young-like prospective enforcement action.  Assume, for example, that shortly after taking office President Trump issues an order freezing certain individual and corporate assets pursuant to the International Emergency Economic Powers Act (IEEPA), and an affected party sues the Office of Foreign Assets Control (OFAC) to enjoin its enforcement of the President’s order on grounds that the order was ultra vires because Trump is ineligible to hold office under Section 3.  See 5 U.S.C. § 706(2)(A) (providing that “[t]he reviewing court shall— … hold unlawful and set aside agency action, findings, and conclusions found to be— … not in accordance with law”); see also Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (explaining that although the APA doesn’t authorize suits directly against the President, “the President's actions may still be reviewed for constitutionality” in a suit against an agency implementing a presidential directive (citing Youngstown and Panama Refining)); id. at 828 (Scalia, J., concurring) (“Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin officers who attempt to enforce the President's directive.”); Armstrong v. Exceptional Child Ctr., 575 U.S. at 327 (federal courts may enjoin “violations of federal law by federal officials”); Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“courts have power to compel subordinate executive officials to disobey illegal Presidential commands”).
If the Trump v. Anderson concurring opinion is correct about the effect of yesterday’s per curiam opinion, presumably the courts would hold that such an APA or Ex Parte Young-like suit can’t go forward because it would (arguably) be seeking “enforcement" of Section 3 outside the context of a Section 3-specific statute. 
The concurrence’s other hypothetical is even more interesting and more arresting.  Assume, for example, that Trump appoints Jeffrey Clark to be Acting Attorney General, and a federal defendant challenges her federal indictment—authorized or signed by Clark—on grounds that Clark is ineligible to hold office under Section 3.  Or let’s say that Trump appointed an acknowledged participant in the January 6, 2021 attack at the Capitol to be U.S. Attorney, and a defendant challenges an indictment signed by that U.S. Attorney.  If the concurring Justices are correct about the meaning of the per curiam opinion, it might mean that courts would be precluded from adjudicating whether Clark or that U.S. Attorney is eligible to serve in office in such a case, even though such ineligibility presumably would render the action ultra vires and thus ordinarily be grounds for quashing the indictment. 
In contrast to the fanciful “Joint Session of Congress might not count Trump electoral votes” hypothetical, it is virtually certain that some litigants—perhaps many hundreds of them—would raise such Section 3 defenses to governmental enforcement actions and prosecutions if Trump is elected and takes office.  It appears that the four concurring Justices preferred to leave open the prospect that federal courts could, in such cases, adjudicate whether the officeholder in question is ineligible to hold office and, on that basis, enjoin prospective application of their actions to aggrieved individuals.  As the Sotomayor/Kagan/Jackson opinion understands the majority opinion, however, the Court has precluded those "defensive" suits (or defenses to prosecution).  
The odd thing about this dispute is that the majority opinion doesn't expressly reference such hypothetical “defense to enforcement” cases.  Had the concurring opinion not referred to them, I think it'd be an open, contested question whether the majority’s rationale would preclude a federal court’s adjudication of a Section 3 eligibility question in such cases.  After all, in those cases courts would not be “enforcing” Section 3 in the way the majority opinion describes—they would not be “imposing on certain individuals [the] preventive and severe penalty [of] disqualification from holding a wide array of offices” (pp. 4-5).  The upshot of a judicial finding that Trump or an appointee is ineligible to hold office under Section 3 in such a case would not be a removal of that person from office but instead “only” an injunction against his or her enforcement of federal law.  (Then again, that’s true of Trump v. Anderson, too:  enforcement of the Colorado Supreme Court opinion would only have meant (at most) removal of Trump’s name from a primary ballot, not “enforcement” of his ineligibility to hold federal office.)  
Of course, if the Supreme Court were to affirm such a holding in any given case, that would put considerable pressure on other actors (i.e., the appointing/removing authority, or Congress) to remove the official in question so that his or her actions wouldn’t all become subject to judicial injunction.  Therefore, the eventual practical effect of such a holding might turn out to be a de facto “disqualification” of the official from holding all covered federal and state offices.  Whether that means that the per curiam opinion would preclude such a challenge in the absence of a further enforcement statute is not evident from the text of the opinion itself.  
That said, the concurrence now has specifically written that that’ll be the effect of the per curiam opinion, and the Justices in the majority didn’t add anything to their opinion to call that reading into question.  Therefore it’s probably fair to assume—although perhaps not certain—that the majority did intend to put the kibosh on such “defensive” Section 3 challenges here and now, so that they don’t consume the federal judiciary come January 21 if Trump is elected.
I assume the Justices in the majority believe that if such actions were adjudicated, the Supreme Court would eventually reject the challenges on some non-merits-based ground.  Therefore, they want to cut off the litigation now.  The concurring Justices, however, apparently think that the Court should confront that question when it arises in “defensive” actions, just as it would any other claim that a federal official’s actions are invalid because the official lacked the legal authority to act.  
That, anyway, is how I’m reading the tea leaves in the opinions.  It's altogether possible, of course, that I'm misreading them and that something different, or in addition, explains the Justices' disagreement.  With any luck, we'll never have occasion to find out exactly what sorts of federal enforcement of Section 3 the majority opinion purports to foreclose.

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