As I have done in past years, I am publishing the discussion questions for the annual casebook supplement of Processes of Constitutional Decisionmaking for some of the major cases of the past Supreme Court Term. Here are the discussion questions for Trump v. Anderson.
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Discussion
1. The Colorado trial court held that
Section 3 did not apply to the President because the President is not an
“officer of the United States.” For an argument to this effect see Josh
Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into
Section 3, 28 Tex. Rev. L. & Pol. 350 (forthcoming 2024),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4568771. This reading would
have the puzzling consequence that former Confederate Generals and officials,
such as Jefferson Davis, who had previously taken oaths of office to support
the Union, would be barred from holding lower federal and state offices, and
could not serve as Presidential electors, but could still serve as President.
Why would the Reconstruction Congress, which sought to stamp out rebellion, and
in Mark Graber’s words, “reward loyalty, [and] punish treason,” have wanted
this result? Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten
Goals of Constitutional Reform after the Civil War (2023).
In Trump v. Anderson, the Court holds that “nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.” In order for this holding to apply to Trump, the President must be a “federal officeholder.” Does this resolve the question of whether the President is an “officer of the United States.”?
2. Both the arguments of the majority
and the concurrences are largely structural and prudential. None of the
opinions spend much time with the history of the adoption of Section 3. That
history, however, strongly suggests that Section 3 is self-enforcing and that
it applies to former President Trump. See, e.g., William Baude and Michael
Stokes Paulsen, The Sweep and Force of Section Three 172 U Pa. L. Rev. 605
(2024); Gerard N. Magliocca, Background as Foreground: Section Three of the
Fourteenth Amendment and January 6th, 25 U. Pa. J. Const. L. 1059 (2023); Mark
Graber, Section Three of the Fourteenth Amendment: Our Questions, Their
Answers, SSRN, (October 3, 2023),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591133. Why do you think
that the originalist Justices disregarded adoption history in this case when
they consider it very important in many other cases you have read?
3. All of the Justices are concerned
that states will disagree about the procedures for disqualification and that
there will be a patchwork of determinations, which will undermine the process
of electing presidents, who represent the entire country. Does this reasoning
apply equally to elections for Senators and Representatives who represent a
single state or parts of a single state? Note the citations to the Term Limits case, which held that states
could not add additional qualifications for federal offices to those stated in
the Constitution. But in this case the states are not adding new
qualifications; they are enforcing ones already there.
4. The majority opinion tries to settle
the application of Section 3 in future cases by strictly limiting when
disqualification will apply. The majority not only prevents States from
disqualifying presidential candidates on the grounds that they engaged
insurrection; it also requires Congress to specifically pass a statute
enforcing Section 3 and that statute must be “congruent and proportional” to
Congress’s power to disqualify insurrectionists. This means that if a candidate
has been convicted of violating some other federal law designed to prevent
abuses of government power, or even designed to prevent the peaceful transition
of power, this conviction might not serve as grounds for disqualification. The
effect of the Court’s holding is to greatly narrow the chances that either
former President Trump, or some other participant in an insurrection, will be
disqualified from federal office.
During the Reconstruction Era, the House
and Senate refused to seat people on the basis of Article I, section 5, clause
1, which provides that "[e]ach House shall be the Judge of the Elections,
Returns and Qualifications of its own Members." Does Trump v. Anderson remove this ability? May a criminal defendant
raise Section 3 as a defense against a federal prosecutor on the grounds that
the prosecutor could not legally hold federal office?
Finally, after Trump v. Anderson, are the members of Congress allowed to refuse to
certify electoral votes for an insurrectionist? 3 U.S.C. § 15(d)(2)(B)(ii)(II),
part of the 2022 amendments to the Electoral Count Act, states that “[t]he only
grounds for objections shall be [if] ... [t]he vote of one or more electors has
not been regularly given.” This language, taken from the 1887 Electoral Count
Act, has been generally understood to allow certain constitutional challenges
to certification, for example, the objection that a presidential candidate is
not 35 years of age. See Derek T. Muller, Electoral Votes Regularly Given, 55
Ga. L. Rev. 1529 (2021); Stephen A. Siegel, The Conscientious Congressman's
Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541 (2004). Absent
enforcing legislation by Congress, does it also allow objections based on
Section 3?
What justifies the Court’s caution in
limiting the possible ways that Section 3 might be applied? Is the problem that
in the heat of an election contest, it is better to let the public decide
whether to allow an insurrectionist to hold office? If so, what is the purpose
of Section 3?
5. Is the problem that Section 3 only
works in a certain historical context? In the aftermath of the Civil War the
Republicans could impose disqualification on candidates from defeated Southern
states who had supported or fought for the Confederacy. There was no doubt that
an insurrection had occurred, and Democrats lacked the practical ability to use
Section 3 to retaliate against Republicans. But today the two major political
parties are almost evenly matched, many Republicans believe that Trump is being
unfairly persecuted, and many may be tempted to retaliate against attempts to
disqualify Trump by disqualifying Democratic candidates in jurisdictions where
Republicans have political control. Should Section 3 be applicable under these
conditions? For an argument that “Section 3 has no ... institutional pathway [in
the contemporary United States] for systematically evaluating whether
disqualification should be imposed on any individual,” see Samuel Issacharoff,
Old Constitutional Provisions and Presidential Selection: The folly of exhuming
Section 3 of the 14th Amendment, Just Security, January 5, 2024, https://www.justsecurity.org/91009/old-constitutional-provisions-and-presidential-selection-the-folly-of-exhuming-section-3-of-the-14th-amendment/.