Unpacking the Supreme Court’s Fourteenth Amendment Ruling
Dive into the complexities of constitutional interpretation with The Lawfare Podcast as legal experts Ned Foley, Quinta Jurecic, Roger Parloff, and Gerard Magliocca weigh in on the Supreme Court's recent Fourteenth Amendment ruling. While the nation's highest court has protected federal officials from state-level disqualifications, has it also opened the door to thorny legislative and enforcement challenges? This episode unpacks the ramifications of the unanimous decision, and the lingering questions regarding Congressional authority and the balance of federal and state powers.
The speakers analyze the Court's reliance on historical precedents, particularly the 1869 Griffin's case, to explore the tentative steps towards regulating the enforcement of Section 3 against national figures. Despite the unanimity in the court's verdict, the justices' opinions diverge, revealing intricate judicial fault lines. Join the discussion as the podcast reveals the subtleties behind the rulings and the implications for America's constitutional framework, captured in the tension between upholding the rule of law and navigating the complexities of political realities.
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1-Page Summary
The Supreme Court's ruling
The Supreme Court has unanimously decided that states cannot bar federal officials from the ballot under Section 3 of the Fourteenth Amendment. This ruling came as they reversed the Colorado Supreme Court's decision to disqualify former President Trump from the presidential ballot on such grounds. Despite turning over the state court ruling, the Supreme Court left many questions about the enforcement of Section 3 against federal officials unanswered, suggesting that Congress might need to take action, but also acknowledging historical precedent for disqualification by Congress alone.
Congress's power to enforce Section 3
Congress’s power to enforce Section 3 remains uncertain, particularly regarding existing laws and the 12th Amendment's role during the count of electoral votes. There's a lack of clarity on whether existing legislation provides enough authority for Congress to enforce the disqualification of officials without further laws, especially when potential insurrection involvement is considered. Moreover, the question of whether disqualification could occur post-election poses a significant dilemma, as it confronts notions of fairness and the voters' will.
The Court's use of the 1869 Griffin's case ruling
The Supreme Court has invoked the precedent set in the 1869 Griffin's case, interpreting it to imply the need for "congruence and proportionality" in any legislation enacted for Section 3 enforcement against national officials. Significantly, the Court ruled that Section 3 is self-executing in relation to state officials without the need for such legislation. This interpretation denotes caution in expanding Congress's power and stresses the balance between federal authority and states’ rights. The Court's reference to the principle from the Griffin's case also indicates that any future legislation for enforcing Section 3 must meet the established congruence and proportionality test, intimating potential challenges in judicial review.
Disagreements between the majority opinion and the liberal justices' concurrence
While the decision was unanimous, deep divisions emerged in the detailed opinions regarding Section 3 enforcement. The liberal justices concurred with reservations, suggesting the majority opinion may unfairly limit mechanisms for enforcing Section 3 against federal officials. Alternatively, Justice Barrett emphasized seeking a tone that de-escalates rather than exacerbates divergence. Despite the apparent unanimity in judgment, discrepancies in the justices' approaches hint at an underlying lack of consensus, with liberal justices conveying concern about the decision's potential protective implications for the former president and the majority's interpretation of the Griffin's case and subsequent application of the "congruence and proportionality" test.
1-Page Summary
Additional Materials
Clarifications
- Section 3 of the Fourteenth Amendment prohibits individuals who have engaged in insurrection or rebellion against the United States from holding public office unless Congress grants them a pardon. This section was originally intended to prevent former Confederates from holding office after the Civil War. It has been rarely enforced in modern times but has gained renewed attention in recent political contexts. The Supreme Court's recent ruling addressed the application of Section 3 to federal officials in the context of election disqualification.
- The 12th Amendment outlines the procedure for counting electoral votes in the United States. It specifies that the President of the Senate must open the sealed certificates containing the electoral votes and present them to Congress for counting. This process occurs in a joint session of Congress and is crucial for officially determining the winner of the presidential election. The 12th Amendment also addresses scenarios where no candidate receives a majority of electoral votes, leading to the House of Representatives selecting the President from the top three candidates.
- "Congruence and proportionality" in legislation means that laws enacted by Congress to enforce a constitutional provision should align closely with the problem they are addressing and should not go beyond what is necessary to achieve the intended goal. This principle ensures that legislative measures are appropriately tailored to the issue at hand, striking a balance between effectiveness and respecting constitutional boundaries. It requires that the means chosen by Congress to enforce a constitutional provision are not overly broad or intrusive, but rather fit the specific circumstances in a measured and proportional manner. This concept aims to prevent legislative overreach and maintain a harmonious relationship between the branches of government while upholding the rule of law.
- Section 3 of the Fourteenth Amendment is considered self-executing in relation to state officials, meaning that it can be applied directly without the need for additional legislation. This implies that states can independently enforce the disqualification of individuals under Section 3 without further congressional action. The self-executing nature of Section 3 in relation to state officials underscores the direct applicability of this provision at the state level without requiring specific enabling laws. This aspect highlights the distinction in enforcement mechanisms between state and federal officials under Section 3 of the Fourteenth Amendment.
- The potential challenges in judicial review mentioned in the text relate to the scrutiny that future legislation for enforcing Section 3 of the Fourteenth Amendment against federal officials may face in the courts. This scrutiny involves assessing whether any new laws passed by Congress align with the principles of "congruence and proportionality" established in previous legal precedents, like the 1869 Griffin's case. The mention of potential challenges in judicial review suggests that any laws enacted to enforce Section 3 must meet certain legal standards to avoid being struck down by the courts. This highlights the importance of ensuring that any future legislation related to disqualifying federal officials under Section 3 is carefully crafted to withstand legal challenges based on established principles and precedents.
- The "protective implications for the former president" mentioned in the text suggest that the decision by the Supreme Court could potentially protect the former President (Trump) from being disqualified from the presidential ballot under Section 3 of the Fourteenth Amendment. This protection could stem from the Court's interpretation of the law and its application in this specific case. The liberal justices expressed concern that the majority opinion, by emphasizing certain principles like "congruence and proportionality," might inadvertently shield the former president from consequences related to Section 3 enforcement.
Counterarguments
- The Supreme Court's unanimous decision may not reflect a true consensus but rather a strategic compromise to maintain the appearance of judicial unity.
- The reliance on historical precedent, such as the Griffin's case, may not adequately address the complexities of modern political and legal challenges.
- The ruling's deference to Congress to take action could be seen as the Court avoiding its responsibility to provide clear legal guidance.
- The emphasis on "congruence and proportionality" could be criticized for potentially limiting Congress's ability to respond effectively to situations involving insurrection or rebellion.
- The notion that Section 3 is self-executing for state officials but not for federal officials could be viewed as an inconsistent application of the Fourteenth Amendment.
- The Court's decision to leave certain questions unanswered might lead to further legal ambiguity and potential challenges in future elections.
- The liberal justices' reservations might be seen as a valid concern that the ruling does not sufficiently safeguard the democratic process from individuals who have engaged in insurrection or rebellion.
- Justice Barrett's call for a de-escalating tone could be criticized for potentially downplaying the seriousness of the issues at hand.
- The apparent lack of consensus among the justices could be indicative of deeper ideological divides that may affect future rulings on related matters.
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The Supreme Court's ruling
The United States Supreme Court has issued a unanimous decision that has significant implications for the enforcement of Section 3 of the Fourteenth Amendment concerning the qualifications of federal officials.
The Court reversed the Colorado Supreme Court's disqualification of Trump from the ballot under Section 3
In a turn of events, the Supreme Court reversed the decision by the Colorado Supreme Court that had disqualified former President Donald Trump from appearing on the presidential ballot. This decision was centered on Section 3 of the Fourteenth Amendment. The justices concurred that states do not have the authority to disqualify a federal official under this section, though they may hold the power to do so for state officials.
The ruling leaves unsettled questions about enforcing Section 3 against federal officials
Despite this clear reversal, the Supreme Court’s ruling in Trump v. Anderson left numerous questions unresolved, potentially setting the stage for uncertainty in the months ahead. The decision implied that enforcing Section 3 against national officials or candidates might require an act of Congress. However, the opinion also recognized historical instances during the Reconstruction era when each house of Congress acted on Section 3 grounds to disqualify individuals without further legislative action. This suggests that there may be no universal requirement for additional legislation.
Foley expanded on this by asserting that Section 3 can indeed be enforced against federal officia ...
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The Supreme Court's ruling
Additional Materials
Clarifications
- Section 3 of the Fourteenth Amendment to the United States Constitution deals with the disqualification from holding public office for individuals who have engaged in rebellion or insurrection against the U.S. government. This section was originally intended to prevent former Confederates from holding office after the Civil War. It provides Congress with the power to remove such disqualifications through a two-thirds vote. The Supreme Court's recent ruling clarified the application of this section to federal officials like former President Donald Trump.
- Enforcing Section 3 of the Fourteenth Amendment against federal officials involves disqualifying individuals who have engaged in rebellion or insurrection against the United States. Historically, during the Reconstruction era, Congress took action to disqualify individuals under Section 3 without additional legislation. The recent Supreme Court ruling suggests that enforcing Section 3 against federal officials may require congressional action, but it also acknowledges historical precedents where Congress acted independently to disqualify individuals under this provision.
- The potential need for new congressional legislation to enforce Section 3 of the Fourteenth Amendment against federal officials arises from the Supreme Court's recent ruling, which left uncertainties about the specific mechanisms for enforcing this provision. While the Court suggested that historical precedents show enforcement without new laws may be possible, the lack of a definitive statement on the need for enabling legislation has left room for debate and potential legal challenges. This ...
Counterarguments
- The Supreme Court's decision may be seen as an overreach of judicial authority, potentially undermining states' rights to determine their own criteria for ballot eligibility.
- The unanimous decision could be criticized for not providing a clear path for enforcement of Section 3, leaving states and federal entities to navigate a complex legal landscape.
- The reliance on historical instances from the Reconstruction era may not be entirely applicable to modern circumstances, and could be seen as an insufficient basis for contemporary legal decisions.
- The assertion that Section 3 can be enforced without new congressional legislation might be challenged on the grounds that the constitutional text is ambiguous and that the framers' intent is not clear in the modern context.
- The idea that Congress can act under Section 3 through its individual chambers and the impeachment process might be criticized for potentially leading to partisan misuse of the disqualification provision.
- The Supreme Court's avoi ...
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Congress's power to enforce Section 3
The discussion centers around the complexities and uncertainties of Congress's power under existing law and the 12th Amendment to enforce Section 3 in the event of a candidate's disqualification due to insurrection.
Open questions around Congress's power under existing law
There are open questions regarding Congress's ability to enforce Section 3 of the 14th Amendment, which disqualifies individuals from holding office if they have engaged in insurrection. Foley highlights that although Section 5 of the 14th Amendment is key for Congress to define enforcement mechanisms for Section 3, it has not comprehensively done so. There is ambiguity over whether legislation, like the Electoral Count Reform Act, suffices as a means to enforce Section 3. Given this lack of clear enforcement procedures, the per curiam opinion is viewed as non-committal, not specifying whether Congress needs enabling legislation for Section 3 enforcement or if it can act more directly within its domain.
Foley also raises the concern that current enforcement might rely solely on existing criminal statutes against insurrection, which offer an uncertain path for action against federal officials. This points to the potential need for new legislation, but Foley sees such development as unlikely in the current Congressional climate.
Open questions around Congress's power under the 12th Amendment to enforce Section 3 in counting electoral votes
Foley and Magliocca delve into the complexities surrounding the enforcement of Section 3 during the counting of electoral votes. They pose questions about the potential for congressional action under the 12th and 20th Amendments when a candidate may be deemed ineligible due to participation in insurrection. The existing legal regime—the 12th Amendment, the 20th Amendment, and the Electoral Count Reform Act—does not provide a clear answer as to whether Congress’s authority within its chambers extends to the joint session during the presidential electoral count.
The Electoral Count Reform Act, cited by the speakers, allo ...
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Congress's power to enforce Section 3
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Clarifications
- Section 3 of the 14th Amendment disqualifies individuals from holding office if they have engaged in insurrection against the United States or aided its enemies. This provision was originally included in the 14th Amendment as a response to the Civil War and aimed to prevent former Confederates from holding public office. The application of Section 3 in modern times, particularly in the context of potential disqualification of elected officials due to involvement in insurrection, raises complex legal and procedural questions regarding enforcement and implications for electoral processes.
- Section 5 of the 14th Amendment grants Congress the power to enforce the provisions of the amendment through appropriate legislation. It empowers Congress to pass laws that are necessary to ensure the rights and protections outlined in the 14th Amendment are upheld. This section has been crucial in shaping civil rights legislation and providing a legal basis for Congress to address issues related to equal protection and due process. Congress's authority to enforce Section 3 of the 14th Amendment, which deals with disqualifying individuals engaged in insurrection, hinges on the interpretation and application of this enforcement power granted in Section 5.
- A per curiam opinion is a decision issued by a court as a whole, rather than being attributed to a specific judge. It is typically brief and does not have an individual author listed. This type of opinion is often used for cases where the court reaches a unanimous or uncontroversial decision.
- The Electoral Count Reform Act is a piece of legislation that outlines procedures for counting electoral votes in Congress. It allows for objections to electoral votes that are not "regularly given," but it does not explicitly address scenarios involving disqualifications under Section 3 of the 14th Amendment related to insurrection. The Act aims to provide a framework for handling disputes during the electoral vote counting process, particularly in cases where objections are raised regarding the validity of certain electoral votes. It is designed to guide Congress in resolving disputes and ensuring the orderly counting of electoral votes during the presidential election process.
- The 12th Amendment outlines the procedures for electing the President and Vice President. In the context of enforcing Section 3 of the 14th Amendment, the 12th Amendment is relevant because it governs the joint session of Congress during the counting of electoral votes. This joint session is where Congress plays a role in certifying the results of the Electoral College vote. The interaction between the 12th Amendment and Section 3 enforcement raises questions about Congress's authority and actions in potentially disqualifying a candidate due to insurrection.
- The 20th Amendment to the United States Constitution, ratified in 1933, sets the date for the inauguration of the President and Vice President as January 20. It also addresses scenarios where a President-elect dies before taking office. In the context of counting electoral votes, the 20th Amendment does not directly address the enforcement of Section 3 of the 14th Amendment regarding insurrection disqualifications.
- During the presidential electoral count, a joint session of Congress is held to officially count the electoral votes cast in the Electoral College for the President and Vice President o ...
Counterarguments
- The lack of defined enforcement mechanisms for Section 3 of the 14th Amendment could be seen as a deliberate choice by the framers to allow for flexibility and interpretation by future Congresses.
- It could be argued that the Electoral Count Reform Act, while not explicitly addressing Section 3 disqualifications, provides a framework that could be interpreted to include such scenarios, thus giving Congress a potential avenue for enforcement.
- Reliance on existing criminal statutes for enforcement against insurrection may be seen as appropriate, as these statutes are designed to address such conduct and could be applied to federal officials as well as private citizens.
- The assertion that new legislation to enforce Section 3 is unlikely may be overly pessimistic, as political climates can change, and the necessity of addressing insurrection could prompt bipartisan action.
- The ambiguity in the existing legal regime regarding Congress's authority during the joint session for the presidential electoral count could be interpreted as a constitutional safeguard to prevent overreach by any single branch of government.
- The "raw power" of Congress to enforce Section 3 under the 12th Amendment might be seen as a necessary check and balance within the constitutional framework, ensuring that individuals who have engaged in insurrection cannot assume office.
- Judicial review processes under the Electoral Count Reform Act, while ...
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The Court's use of the 1869 Griffin's case ruling
Requiring "congruence and proportionality" for Section 3 enforcement legislation
The court reflected on the 1869 Griffin's case, where Chief Justice Chase, serving as a circuit judge at the time, deemed Section 3 of the act to be non-self-executing and in need of enabling legislation by Congress. However, they adjusted this idea, asserting that Section 3 is self-executing concerning state officials but mandates enabling legislation for federal officials.
While the court did not align fully with the original Griffin ruling—which called for an act of Congress to enforce Section 3 against anyone—they offered a refined perspective: an act of Congress is only necessary for enforcement against national officials or candidates. This adaptation originated from apprehensions regarding the magnitude of Congress’s authority, intending to balance this with states' rights.
Gerard Magliocca highlighted that Griffin's case underpins the court's modified stance, and they utilized an element of it to argue for the necessity of "congruence and proportionality" in Section 3 enforcement legislation. Foley elaborated that the court's dependency on the Bernie decision implies that any forthcoming legislation to impose Section 3 must meet the congruence and proportionality test, potentially becoming a basis for judicial scrutiny that could lead to the legislation being invalidated. He noted the ambiguous ...
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The Court's use of the 1869 Griffin's case ruling
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Clarifications
- The Griffin's case referenced in the text is a historical legal case from 1869. In this case, Chief Justice Chase ruled that Section 3 of a particular act required enabling legislation by Congress for enforcement. The significance lies in how the court in the present text revisits and adapts this ruling to determine the need for legislation in enforcing Section 3 against federal officials and candidates.
- Chief Justice Chase, in the 1869 Griffin's case, interpreted Section 3 of the act as requiring enabling legislation by Congress for federal officials but not for state officials. This interpretation differed from the original Griffin ruling, which called for an act of Congress to enforce Section 3 against anyone. Chase's interpretation aimed to balance Congress's authority with states' rights, leading to the court's modified stance on the self-executing nature of Section 3.
- A self-executing law is one that can be enforced and applied without the need for additional legislation, while a non-self-executing law requires further action by a legislative body to be effective. Self-executing laws are complete on their own and can be directly enforced, whereas non-self-executing laws need enabling legislation or regulations to be put into practice. The distinction is important in understanding how a law can be implemented and enforced in a legal system.
- "Congruence and proportionali ...
Counterarguments
- The interpretation of Section 3 as self-executing for state officials but not for federal officials could be seen as inconsistent and lacking a clear constitutional basis.
- The requirement for "congruence and proportionality" might be viewed as an unnecessary judicial imposition that complicates the enforcement of Section 3.
- The reliance on the 1869 Griffin's case may be criticized for being outdated and not reflective of modern constitutional understanding or current political realities.
- The distinction between state and federal officials in the enforcement of Section 3 could be argued to create a double standard that undermines the uniform application of the law.
- The "congruence and proportionality" test could be seen as too vague or subjective, potentially leading to unpredictable judicial decisions.
- The emphasis on balancing Congress's authority with states' rights might be challenged as an overreach of judicial power in determining the scope of federal legislat ...
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Disagreements between the majority opinion and the liberal justices' concurrence
The Supreme Court’s decisions are typically a complex interplay of legal reasoning, where even concurrences may reveal deep fissures. In issues concerning federal officials who are oath-taking insurrectionists, the differing opinions reflect nuanced discord within the Court.
The liberal justices, including Sotomayor, Kagan, and Jackson, concurred with the majority but expressed that the majority opinion could have restricted alternative ways of enforcing Section 3 against federal officials. Justice Barrett, in her separate concurrence, raised concerns about the stridency of the language used by the liberal justices. She called for a tone that reduces, rather than amplifies, disagreements.
Jurecic points out that despite the per curiam nature of the majority opinion, ideally signaling unanimity, real agreement is lacking, with the liberal justices significantly diverging. Parloff adds that Justice Barrett highlighted unanimity in judgment, underscoring a desire for a united front, yet the liberal justices did not seem committed to this unity, as evidenced by speculations about metadata changes in how the liberal justices' positions were recorded.
Ned Foley interprets the liberal justices' concurrence as a reaction to an initially more expansive draft by the majority, which was pared down but still fell short of preventing the concurrence. Efforts likely led by Chief Justice Roberts to reach a compromise didn't prevent the alternative opinion. Meanwhile, Gerard Magliocca suggests the majority said both too much and too little; he asserts that if the majority chose to say more on the subject, they should have provided clarity regarding all enforcement measures, rather than leaving ambiguity.
Quinta Jurecic calls attention to the concurrence’s stark rhetoric, fine-tuning their disagreement with the majority to appear relatively limited, while accusatorily suggesting the majority aims to protect the former president from future actions. This divergence in rhetoric intensity versus actual disagreement specificity shines a spotlight on the inherent tensions.
The core ...
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Disagreements between the majority opinion and the liberal justices' concurrence
Additional Materials
Clarifications
- The liberal justices diverged from the majority due to concerns that the majority's opinion might limit alternative ways of enforcing Section 3 against federal officials. They expressed reservations about the language used and the potential restrictions on enforcement measures. The divergence stemmed from differing interpretations of the ruling's implications and the desire for more clarity on enforcement measures. The liberal justices' concurrence highlighted a nuanced disagreement with the majority's approach to interpreting the case law and addressing future challenges.
- The disagreement between the majority and liberal justices revolves around differing interpretations of how to enforce Section 3 against federal officials who are oath-taking insurrectionists. The liberal justices expressed concerns that the majority's approach could limit alternative enforcement methods and did not fully endorse the majority's interpretation of the Griffin's case. This disagreement led to nuanced discord within the Court, with the liberal justices deviating from the majority on key points related to enforcement and the implications of the ruling. The liberal justices' concurrence highlighted a desire for more clarity and specificity in addressing the issue, while the majority aimed for a more conclusive interpretation, leading to tensions over the application of legal tests and the overall approach to Section 3 legislation.
- Chief Justice Roberts, as the leader of the Supreme Court, often plays a crucial role ...
Counterarguments
- The liberal justices' concerns about restricting enforcement methods may overlook the importance of a narrow ruling to avoid overreach and unintended consequences.
- Justice Barrett's concerns about the language's stridency could be seen as a call for civility, but it may also be perceived as an attempt to minimize the substantive legal disagreements at hand.
- While there is a lack of real agreement, this could be indicative of a healthy judicial process where diverse opinions are allowed and encouraged, rather than a sign of dysfunction.
- Highlighting unanimity in judgment might be an oversimplification of complex legal issues where consensus on the outcome does not necessarily mean agreement on the reasoning.
- The speculation about metadata changes could be unfounded and may not necessarily reflect a lack of commitment to unity but rather a commitment to transparency and accuracy in how opinions are presented.
- The reaction to the initially more expansive draft by the majority could be seen as a necessary check and balance within the Court, ensuring that all perspectives are considered before a final decision is made.
- Chief Justice Roberts' efforts to reach a compromise may have been successful to some extent, as there was concurrence in judgment, even if not in reasoning.
- The criticism that the majority said both too much and too little could be countered by the argument that the Court must balance the need for clarity with the need to avoid ruling on issues not directly before it.
- The concurrence's rhetoric, while pointed, may be justified if the liberal justices genuinely believe that the majority's decision has significant implications for the rule of law and accountability.
- The disagreement on the interpretation o ...
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