Congress Courts & Litigation Executive Branch

Can Congress Disqualify Trump After the Supreme Court’s Section 3 Ruling?

Ned Foley
Thursday, March 14, 2024, 12:42 PM
The dueling opinions for the 9-0 decision support two opposing interpretations on this crucial question.
The U.S. Capitol building in Washington, D.C. (Ben Schumin,; CC BY-SA 2.0,

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The most important question raised by the Supreme Court’s decision in Trump v. Anderson, which forbids states from barring Trump from the ballot on the ground that only Congress can enforce the Constitution’s disqualification of insurrectionists from federal offices, is exactly how Congress is entitled to enforce this disqualification.

Essentially, there are two different ways to read the Court’s cryptic per curiam opinion. One is that Congress must exercise its power granted in Section 5 of the 14th Amendment to enact a statute specifically tailored to enforcing the disqualification provision in Section 3 of the amendment—and that, pursuant to the Court’s previous jurisprudence concerning the scope of this Section 5 power, this congressional legislation must be “congruent and proportional” to the substance of the Section 3 disqualification.

The other possible reading of the per curiam opinion is that this kind of congressional legislation is a prerequisite for any type of judicial or administrative enforcement of Section 3 for federal offices, but it is not a prerequisite for other ways that Congress constitutionally may enforce Section 3. 

To understand the difference between the two possible readings of the opinion, it is useful to consider a couple of specific examples. First, it is possible to imagine—as the Court itself did—that if Trump were to return to the presidency, litigants might attempt to have a federal court declare that his actions as president are null and void because Section 3 disqualifies him from holding the office again. This kind of litigation is unquestionably at least part of what the Court had in mind when it pronounced that Congress must enact a statute detailing the specific procedures by which a court could conclude that Trump was a disqualified insurrectionist, including, perhaps, such matters as the burden of proof on the relevant factual questions. 

Second, the Court itself acknowledged that congressional legislation is unnecessary before each chamber of Congress is entitled to exclude elected insurrectionists from taking their seats in the chamber pursuant to each chamber’s separate constitutional power to judge the qualifications of its own members. Presumably also, by the same reasoning, Congress could enforce Section 3 of the 14th Amendment by means of the impeachment process without having first to enact a special statute pursuant to Section 5 of the amendment. In other words, if there had been 67 votes in the Senate to convict Trump for his role in the Jan. 6, 2021, attack on the Capitol, and not just 57 (as there were), then the Senate could have barred Trump from serving as president again, and this is true even if Congress had not passed any statute making insurrection a federal crime punishable by (among other penalties) disqualification from office.

Although this much is clear enough from the per curiam opinion, one crucial issue remains unsettled: What about the role of Congress under the 12th and 20th Amendments to count the electoral votes received from the states and officially declare the winner of the presidential election on Jan. 6 in advance of the president-elect’s inauguration at the beginning of the new term beginning at noon on Jan. 20? According to Trump v. Anderson, must Congress have first enacted a statute pursuant to Section 5 of the 14th Amendment to enforce Section 3 in order for Congress in its special joint session under the 12th Amendment—at which Congress counts the electoral votes and officially declares who is president-elect—to refuse to permit the inauguration of a candidate who received a majority of electoral votes, on the ground that the candidate is disqualified by Section 3? Or, instead, are the powers vested in Congress by the 12th and 20th Amendments with respect to the election and inauguration of presidents similar to the power of each chamber to judge the qualification of its own members (and also the impeachment powers vested in Congress), such that no Section 5 legislation is required before Congress may prohibit the inauguration of a candidate because Congress, as part of its special joint session under the 12th Amendment, determined that this candidate is an oath-breaking insurrectionist barred by Section 3?

As a practical matter, this issue is important only if enough members of Congress might wish to block Trump from being inaugurated president again on Jan. 20, 2025, assuming 270 or more electoral votes are cast for him on Dec. 17, 2024 (based on the popular votes cast in the Nov. 5 general election). 

To be clear, even if Congress has the power to disqualify Trump under the 12th and 20th Amendments without having previously enacted legislation enforcing Section 3, I believe it would be irresponsible for Congress to do so. As I have argued repeatedly, from an election law perspective the time for disqualifying Trump as an insurrectionist is before voters cast their ballots in the Nov. 5 general election, and not afterward. Indeed, in 2021 and 2022, I implored Congress to enact a statute to establish procedures for requiring the Department of Justice to pursue civil (not criminal) litigation that would adjudicate whether or not Trump’s responsibility for the Jan. 6 attack bars him from returning to the Oval Office. Obviously, however, Congress did not heed that call. 

Nonetheless, it still remains an open question whether or not Congress has this power even if it would be unwise for Congress to exercise it. The wisdom of a congressional effort on Jan. 6, 2025, to stop Trump from being inaugurated on Jan. 20 is a political matter. The authority of Congress to take this step is a separate legal matter—and one that is left vexingly unclear by the Court’s per curiam in Trump v. Anderson

There are passages in the opinion that, taken together, seem to imply that prior congressional legislation is necessary and that Congress is not empowered to disqualify Trump on Section 3 grounds in the context of the 12 Amendment joint session if he hasn’t been disqualified already pursuant to such legislation. First, the per curiam says on page 5 that “Congress’s Section 5 power is critical when it comes to Section 3” (emphasis added). While “critical” is not quite the same as “essential,” it certainly suggests a necessity. 

Second, and similarly, in describing the nature of the congressional legislation that must exist, the per curiam embraces the passage from Chief Justice Salmon P. Chase’s In re Griffin opinion that describes the kind of specific provisions that the congressional legislation must include in order to enable a determination that a particular person is disqualified by Section 3: “proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable” (emphasis added).

Third, the per curiam uses the word “unique” to describe the separate power of each chamber under Article I, Section 5, to judge the qualifications of its own members, without need of prior congressional legislation. This suggests that the Court believes that the powers of Congress pursuant to the 12th and 20th Amendments cannot be used to enforce Section 3 of the 14th Amendment and that Trump must have been disqualified previously pursuant to congressional legislation enacted under Section 5.

Fourth, the per curiam says that the Court is aware of only two statutes that Congress enacted to enforce Section 3, one of which has since been repealed and the other of which is the law that makes insurrection a federal crime (which actually predates the 14th Amendment). Presumably, this means that the Court does not consider the Electoral Count Reform Act of 2022 (ECRA) to be such a statute. In that law, Congress updated its procedures for conducting the joint session of Congress required by the 12th Amendment for counting electoral votes and officially declaring the president-elect. ECRA contains a provision that arguably could be invoked to reject electoral votes cast for a candidate ineligible to serve as president. Though ECRA had been discussed during briefing for Trump v. Anderson, the Court apparently did not consider it when it observed: “Neither we nor the respondents are aware of any other legislation by Congress to enforce section 3.”

Fifth, and perhaps most significant, the per curiam strongly disparaged any attempt to disqualify Trump after the Nov. 5 general election. “The disruption,” it wrote, “would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted.” While this statement is specifically about states attempting to disqualify a presidential candidate after popular vote ballots have been cast for the purpose of appointing presidential electors, it is hard not to read these words as expressing an emphatic sentiment that the joint session of Congress also should not cause “such chaos” or negate the votes and overturn the outcome of the election. Indeed, insofar as the “congruence and proportionality standard that the Court has developed for Section 5 legislation is applicable to congressional enforcement of Section 3 in the context of a presidential election, one can easily imagine these words meaning that disqualification of a candidate after that candidate has won a majority of electoral votes cast by presidential electors appointed based on the popular votes in the Nov. 5 general election would, according to the Court, not be “congruent and proportional” to the preemptive disqualification of a former president under Section 3. 

All this adds up to a plausible interpretation of the per curiam as holding that Congress is powerless to disqualify Trump on Jan. 6, 2025, and that if Trump is to be disqualified it must be pursuant to congressional legislation enacted and implemented before the Nov. 5 general election—obviously something that is not going to occur, with the House in the pro-Trump hands of Speaker “MAGA Mike” Johnson. (In conversations with me about the case before the oral argument, law professor Andrew Coan anticipated that the Court would want both to punt the Section 3 issue to the exclusive authority of Congress and rule that Congress must exercise this exclusive authority before ballots are cast in a presidential election. In these conversations, I had countered that I saw no tenable way for the Court to insist on both propositions, but the passages of the per curiam just examined indicate that Coan correctly predicted the result the Court wanted to reach.)

Moreover, the vehement separate opinion of the Court’s three liberals—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—contain passages indicating that these justices interpret the per curiam this way. First, the liberals condemn the Court’s per curiam for “decid[ing] novel questions to insulate this Court and petitioner from future controversy” (emphasis added). Given that “petitioner” is Trump, insulating him from “future controversy” presumably includes insulating him from the possibility that the joint session of Congress on Jan. 6, 2025, might deliberate over whether Section 3 precludes him from the presidency.

Second, and similarly, the liberals complain: “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.” Again, the language of exclusivity indicates that enforcement of Section 3 by Congress in its 12th Amendment joint session is not an option. In this respect, the liberals share the per curiam’s view that ECRA doesn’t qualify as the “particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment” that the per curiam requires. 

Third, in attacking the per curiam’s reasoning, the liberals observe that Congress has the power to enforce “other constitutional rules of disqualification, like the two-term limit on the Presidency” without having to first enact “implementing legislation.” Presumably, the way these other disqualification rules—like the requirements that the president must be 35 years old and born a U.S. citizen—would be enforced by Congress is in its joint session pursuant to the 12th Amendment, to make sure that no ineligible president-elect was inaugurated on Jan. 20 in violation of the 20th Amendment. But if the 12th Amendment joint session of Congress can enforce these other presidential eligibility requirements, then why not also the requirement that the president-elect not be an oath-breaking insurrectionist disqualified by Section 3? The liberals answer this question by asserting that “the majority” acknowledges the power of Congress to enforce the other presidential eligibility requirements but “simply creates a special rule for the insurrection disability in Section 3.”

Fourth, immediately after making this point, the liberals add: “The majority is left with next to no support for its requirement that a Section 3 disqualification can occur only pursuant to legislation enacted for that purpose.” This sentence is further indication that the liberals understood the per curiam as extending its insistence on congressional legislation for any enforcement of Section 3 against federal officials to preclude Congress in its 12th Amendment joint session from invoking ECRA to disqualify Trump if he has won a majority of electoral votes. 

Fifth, and most significant, the liberals assert: “It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision” (emphasis added). This sentence is not about foreclosing federal courts from entertaining claims that Trump is disqualified after he is sworn into office for another term. Instead, it is about blocking Trump as a “candidate” from becoming president, and it is about blocking Trump from becoming president in the “future”—presumably, after the election, and by Congress acting in its 12th Amendment joint session. 

Sixth, and essentially the same, the liberals repeat the previous point: “Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.” This sentence, too, does not concern any adjudication of Trump’s disqualification after he has become president again. Rather, it also is about stopping him from “becoming President” after he has won the election—something that only Congress would be in a position to do in its 12th Amendment joint session. 

The sum of the per curiam opinion and the liberals’ separate opinion seems to suggest that the Court’s ruling in Trump v. Anderson is that Congress has no power to enforce Section 3 in the context of a presidential (rather than congressional) election, except by means of enacting a statute pursuant to Section 5. As the liberals lamented, even though Congress clearly has the power to enforce other presidential eligibility requirements in its 12th Amendment joint session without having enacted a statute, or to treat ECRA as an adequate statute for the purpose of enforcing these other presidential eligibility requirements, Trump v. Anderson seems to create a special exception for the Section 3 disqualification provision. It needs congressional legislation enacted in advance of a presidential election specifically tailored to adjudicating the Section 3 disqualification issue if a presidential candidate (who has not been convicted by two-thirds of the Senate for insurrection) is to be barred from holding the office. 

And yet Trump v. Anderson leaves the issue not so open-and-shut. Because the per curiam never mentions the 12th Amendment joint session of Congress—or the 20th Amendment or ECRA—it remains less than fully clear whether the Court really intends to require Congress to enact “congruent and proportional” legislation under Section 5 tailored specifically to Section 3 before Congress under the 12th and 20th Amendments can constitutionally refuse to inaugurate a presidential candidate whom Congress determines to have been an oath-breaking insurrectionist. One can argue based on all of the above that, yes, this is the Court’s intent. But one can also argue that the Court’s silence on this crucial point must mean that the Court has left open the possibility that congressional enforcement of Section 3 in the context of a 12th Amendment joint session is much more like congressional enforcement of Section 3 pursuant to each chamber’s Article I, Section 5, power to judge the qualifications of its own members-elect, as well as much more like congressional enforcement of Section 3 in the context of a House impeachment and a Senate trial. On this reading of the per curiam opinion, all of its language about the necessity of Section 5 legislation for the enforcement of Section 3 applies to institutions other than Congress itself: Federal courts and federal agencies, like states, may not on their own initiative disqualify individuals from holding federal office on Section 3 grounds unless and until Congress has enacted “congruent and proportional” legislation for the purpose of such judicial or administrative enforcement of Section 3. But the liberals overread the per curiam opinion, given its silence on the specific matter, when they decry the per curiam’s language as blocking Congress from exercising its own other constitutional powers to enforce Section 3. After all, the joint session of Congress is just as “unique” a constitutional provision granting special powers to Congress other than the enactment of legislation (applicable only to presidential elections) as is Article I, Section 5 (applicable only to congressional elections), or indeed the impeachment process (applicable only to severe misconduct of federal officers). 

Moreover, how could the Court enforce its congruence and proportionality standard in the context of a joint session of Congress under the 12th Amendment? It is clear how the Court can enforce this standard in the context of judicial or administrative proceedings to entertain a claim of Section 3 disqualification. The Court could simply render an injunction or other judicial order to block the court or administrative agency from considering the Section 3 claim. Those kinds of injunctions and judicial orders are routine in our legal system. But, to my knowledge, the Court has never attempted to enjoin Congress itself from exercising its constitutionally designated powers. It certainly has never attempted to order a 12th Amendment joint session of Congress to act in a certain way with respect to the counting of electoral votes or declaring the official result of a presidential election or otherwise determining who is entitled to take the oath of office as president on Jan. 20. Given the constitutional separation of powers, it would seem unthinkable that the Court would consider that its Marbury v. Madison authority to interpret the Constitution in cases properly within its Article III jurisdiction would extend to a judicial prerogative to direct Congress’s exercise of its separate 12th and 20th Amendment powers. 

Indeed, there is precedent for the proposition that the Court would view a lawsuit aiming to control the conduct of a 12th Amendment joint session of Congress as “nonjusticiable” under the political question doctrine. The Court has already determined that the judiciary cannot review Congress’s exercise of its special impeachment procedures because any such judicial review would interfere with the exclusive authority of Congress to conduct these special procedures. Likewise, while neither chamber of Congress can add extra qualifications beyond those constitutionally specified to be a member of the chamber, no court can second-guess each chamber’s enforcement of the constitutionally specified qualifications pursuant to the chamber’s exclusive power under Article I, Section 5. 

By similar reasoning, a lawsuit attempting to control the proceedings of Congress’s 12th Amendment proceedings would also be “nonjusticiable” under the political question doctrine. In other words, the Court’s congruence and proportionality test cannot be enforced in this context. Rather, it can be enforced only where courts and administrators are implementing a federal statute enacted pursuant to Section 5 of the 14th Amendment; in this situation, the courts and administrators can be enjoined from their implementation if the applicable federal statute is not congruent and proportional to the relevant substantive provision of the amendment. But the congruence and proportionality test is simply inapplicable where Congress is acting pursuant to other powers besides Section 5.

This congruence and proportionality test is most certainly inapplicable to any enforcement of Section 3 by each chamber of Congress pursuant to Article I, Section 5. Similarly, the congruence and proportionality test is most certainly inapplicable to any enforcement of Section 3 in the context of impeachment proceedings. The same logic holds that the congruence and proportionality test is inapplicable to any enforcement of Section 3 in the context of a 12th Amendment joint session of Congress. The fact that Congress might enforce Section 3 in a 12th Amendment joint session without having enacted prior legislation under Section 5 is besides the point for purposes of congruence and proportionality; Congress possesses full authority under the 12th and 20th Amendments to enforce all presidential eligibility requirements, including Section 3 of the 14th Amendment, without having first enacted a statute giving itself permission to enforce these requirements. 

Bolstering this analysis is the compelling point that there was no textualist or originalist basis for the Court to make a special exception for Section 3 of the 14th Amendment from the general congressional power pursuant to the 12th and 20th Amendments to enforce presidential eligibility requirements. Nothing in the 14th Amendment itself, or in any other provision of the Constitution, requires or even suggests such an exception. And given that Section 5 legislation is not necessary to enforce Section 3 when Congress is acting pursuant to its Article I, Section 5 or impeachment powers, nothing in either the 14th Amendment or any other provision of the Constitution requires or suggests that the special powers of Congress under the 12th and 20th Amendments should be treated any differently from these other special congressional powers. 

Insofar as the per curiam opinion is read to reach this anomalous conclusion, the Court rendered its decision without any legally sound rationale. Rather, the Court merely reached its apparently desired result by judicial fiat. To be sure, much of the per curiam’s reasoning is inconsistent with textualism and originalism, as others have observed, and instead has all the hallmarks of result-driven motivation. In particular, the Court’s concern that states might adopt different rules and procedures for the appointment of their presidential electors, going their separate ways in deciding how to handle the possibility that a presidential candidate might be disqualified under Section 3 of the 14th Amendment, is flatly contrary to the practice of states in the first presidential election after the adoption of the 14th Amendment. On that occasion, one state legislature exercised its constitutional prerogative to appoint the state’s presidential electors itself in order to make sure that Reconstruction-supporting Ulysses Grant would receive the state’s electoral votes rather than the Reconstruction-opposing Democratic Party nominee (a point I’ve made previously). 

Obviously, when a ruling of the Court is clear, the inconsistency of its reasoning with the text and original understanding of the Constitution is irrelevant. Under Marbury, the Court has the final word on the meaning of the Constitution in cases where it has jurisdiction, as it clearly did in Trump v. Anderson. But when the Court itself is silent on a critical and specific question, and that question concerns a matter potentially outside the Court’s jurisdiction under the political question doctrine and the constitutional separation of powers—and when the Court’s reasoning in support of what it did say is clearly contrary to the original understanding of the relevant constitutional provisions, as is the case here—then the Court’s own words don’t deserve to be extended beyond what they unambiguously entail. The Court’s silence on the critical question should not be taken as reaching an outcome inconsistent with a proper understanding of the Constitution’s text and original history. 

Thus, after a close and lengthy examination of the issue, we are left frustratingly at the same place where we started: There are two plausible readings of the per curiam that point in exactly opposite directions on the most important issue in the aftermath of the Court’s decision. It is not wrong to think that the Court required Congress to enact Section 5 legislation in order to enforce Section 3 in the context of a presidential election and that Congress may not use its 12th and 20th Amendment powers for this purpose. But it is also not wrong to think that the Court reached no such result and that, therefore, Congress remains empowered to use its 12th Amendment joint session in this way. 

How did the Court leave the nation—and Congress—in such uncertainty over this crucial question? 

Based on my experience clerking at the Court years ago and subsequently having taught the Court’s cases in constitutional law classes for over three decades, I speculate that an earlier draft of the Trump v. Anderson per curiam opinion was not silent on this point but instead contained language that more clearly constrained Congress from disqualifying Trump in its joint session on Jan. 6, 2025, without the enactment of Section 5 legislation in advance of the Nov. 5 general election. I believe that additional language is what provoked the wrath of the liberals, and the majority of the Court (most probably led by Chief Justice John Roberts) attempted to placate the liberals by removing that additional language. But the majority’s revisions did not placate the liberals enough to abandon at least some of their vehemence, and thus we are left reading a response to the per curiam opinion that appears to attack a result that the per curiam no longer explicitly reaches. 

Whatever the accuracy of this speculation, the matter is now in Congress’s hands—or, more precisely, it will be in the hands of the new Congress seated on Jan. 3, 2025. Members of Congress will need to decide for themselves which of the two readings of Trump v. Anderson they wish to adopt. They can choose to believe that they are powerless to disqualify Trump on Jan. 6, 2025. Or they can choose to believe that they have this power, and that Trump v. Anderson does not deny it to them. 

Of course, if Trump does not win, Congress will not need to confront this momentous question. But if he does, then my own view is that the better understanding of the Constitution—including the Court’s interpretation of it in Trump v. Anderson—is that Congress retains the power to disqualify Trump under Section 3 in its joint session on Jan. 6, 2025. But despite reaching this judgment about the better view of the legal issue at stake, I do not think Congress should exercise this power to bar Trump from returning to the presidency after he has won the election. 

Simply put, it is not fair to voters to negate the presidential choice they made after they have cast their ballots. Congress had the chance to create procedures for a civil adjudication to allow a Trump disqualification well in advance of this year’s election. It failed to do so, and it was not saved by a Court decision that would force a resolution of Trump’s status under Section 3 before the election. Congress—and the nation—must accept the consequences of this regrettable negligence.

Ned Foley holds Ohio State University’s Ebersold Chair in Constitutional Law and directs its election law program. He currently is a Guggenheim Fellow and Visiting Professor at University of Arizona’s law school. He is the author of Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, revised edition 2024), and Presidential Elections and Majority Rule (Oxford University Press, 2020). He writes about improving electoral procedures at Common Ground Democracy.

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