I have posted on SSRN a new essay, entitled Narrow But Deep: The McCulloch Principle, Collective-Action Theory, and Section 3 Enforcement. The essay relies upon the structural theory of the United States Constitution developed in my recently published book, The Collective-Action Constitution (Oxford Univ. Press, 2024). The essay provides a substantially stronger rationale for the U.S. Supreme Court’s judgment in Trump v. Anderson, 144 S. Ct. 662 (2024), than the Court itself was able to offer. Instead of denying the undeniable—that Section 3 is self-executing—the essay argues that a structural principle of constitutional law originating in the Court’s second holding in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), prohibits state executive officials and state courts from enforcing Section 3 against presidential candidates who at least enjoy substantial support within their own political party. The essay concludes that critics of the Court’s decision in Trump v. Anderson can fairly object to much of the Court’s reasoning, but not to the outcome that it reached.
Here is the abstract:
In Trump v. Anderson, 144 S. Ct. 662 (2024), the Supreme Court of the United States held that the Colorado Supreme Court erred in excluding former President Donald J. Trump from the Republican Party’s primary ballot in the state. The Court reasoned that the Constitution makes Congress, not the states, solely responsible for enforcing Section 3 of the Fourteenth Amendment. Scholars of Section 3 have demonstrated that Section 3 is self-executing, so the Court’s rationale lacks a sound basis in the original or contemporary meaning of the text of the Civil War Amendments, the original intent of their drafters, or the Court’s own precedent interpreting them. This Essay nonetheless argues that the Court’s judgment is justifiable on structural grounds identified in the Author’s recent book, The Collective-Action Constitution (2024). As envisioned in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Constitution’s federal structure bars states from enforcing Section 3 against candidates for President or Vice-President, at least if they enjoy substantial support within their own political party. More than two centuries ago, McCulloch articulated a structural principle that disables states from causing multistate collective-action problems by interfering with a function of the national governing process. That structural, collective-action principle extends in parallel fashion to actions by states that interfere excessively with a function of the national political process. The Presidency, along with the Vice-Presidency, is a uniquely national office because all states, and all voters in states, play a role in determining who will run for that office and ultimately occupy it. Just as “a part” may not tax “the whole” because the whole is not represented in the part, so a part may not make presidential eligibility decisions that significantly undermine the capacity of the whole to determine who will represent it in the White House. Legal scholars can justly criticize much of the Court’s reasoning in Trump v. Anderson, but not the result that it reached.