The Lawfare Podcast: Unpacking the Supreme Court’s Fourteenth Amendment Ruling

[Audio Excerpt]

Ned Foley

And so the question still remains if members of Congress in their judgment believe that the winning candidate in the electoral college is ineligible to serve, do they have the power under the 12th and 20th Amendments and the statute that exists in the ECRA to make sure that an unqualified person never takes the oath on January 20^th? I don't think the per curiam opinion was successful in foreclosing that issue as much as it probably tried to do so, but that's what provoked the wrath of the three liberals.

[Main Podcast]

Quinta Jurecic

I'm Quinta Jurecic, a Senior Editor at Lawfare and this is the Lawfare Podcast, March 11th, 2024.

On March 4th, the Supreme Court ruled in Trump v. Anderson, holding that states cannot disqualify Donald Trump from appearing on the presidential ballot under Section 3 of the 14th Amendment. Section 3 bars former officeholders who have since engaged in insurrection from taking future public office. And in recent months, a slew of lawsuits from voters and advocacy groups have pointed to this provision in seeking to strike Trump from the ballot in various states due to his conduct on January 6th. The Court's judgment rules out that possibility, but it leaves a surprising amount of questions unsettled in a way that may queue up chaos in the coming months. To make sense of the Court's ruling, I spoke with my Lawfare colleague, Roger Parloff, who has been closely watching the Section 3 cases, Ned Foley, an expert in election law at the Ohio State University, and Gerard Magliocca of Indiana University, who has been studying Section 3 since before it was cool.

It's the Lawfare Podcast, March 11^th: Unpacking the Supreme Court's 14th Amendment Ruling.

There's a lot to dive into, so I want to make sure we start by setting out the lay of the land. Roger, would you be able to just give a brief overview of what exactly the Supreme Court did here?

Roger Parloff

Sure. So it was 9-0 to reverse the Colorado Supreme Court, which had disqualified Trump from the ballot, of course. That was a 13-page per curiam decision. Then there was a brief two-paragraph concurrence by Justice Barrett, and then there was a six-page concurrence by Sotomayor, Kagan, and Jackson. And so, the thing that everyone agreed on was that the states cannot disqualify a federal official using Section 3. They appeared to say that a state did have jurisdiction to, could disqualify a state official. Section 3 was self-executing in that sense, but it didn't give them power to do that to a federal official. This would produce a crazy patchwork and chaos in the country. You wouldn't have uniformity in choosing the president of the United States. So they all agreed on that, and the main precedent they all agreed on was U.S. Term Limits v. Thornton, maybe we can talk about that later.

The four women justices, as it turned out, all agreed that they should have stopped there. But the five did go on and they discussed how do you disqualify federal officials who are oath-taking insurrectionists. They said that basically, Section 5 of the 14th Amendment is critical here, that basically Congress has to get involved and define how to enforce Section 3. Apparently, and here I'm a little unclear, but apparently, since it has not done that, there is no way to enforce it against federal officials at the moment, except possibly, except, I think, through the existing, there is a criminal statute, 18 U.S.C. 2383, the criminal statute against insurrection. It was actually enacted before Section 3, but it's still on the books and apparently, they feel you can enforce it that way.

The gist of the concurrence of Sotomayor, Kagan and Jackson was that there was no need to say that. And that the majority had, in essence, foreclosed other possible ways of enforcing Section 3 against federal officials, improperly. Their language was pretty strident--well, Justice Barrett thought so. They said at one point, talking about the majority opinion, “They decide novel constitutional questions to insulate this court and petitioner from future controversy.” So that was strong language. And that's apparently the main reason Barrett did not join them. She wrote, “In my judgment, this is not the time to amplify disagreement with stridency. The court has settled a politically charged issue in a volatile season of a presidential election. Particularly in the circumstances, writings on the Court should turn the national temperature down, not up.”

Quinta Jurecic

That's great. Thank you. So, Ned and Gerard, I want to make sure that I get your thoughts on the big scope of the decision before we dive into the details. Ned, let me turn to you first. Is there anything else you want to put on the table before we dig deep?

Ned Foley

Well, I think Roger did a great job summarizing it. To me, the big open question, and I think there's ambiguity in the majority opinion with respect to this question, is does this notion that the only way to enforce Section 3 against federal officials is by means of legislation, does that apply in the context of the counting of electoral votes under the 12th Amendment when the Congress is sitting in its special joint session on January 6, 2025? There's already been a vigorous discussion among election law scholars and constitutional law scholars on this with different views in opposite directions, and I think we can talk about why the majority opinion makes this ambiguous and allows for two different readings. But, I think as a practical matter, that's the most important question going forward in terms of Trump specifically and Section 3 specifically in relationship to Trump. So that's on my mind.

Gerard Magliocca

Right, I agree with that. I don't know how much else I have to add. There is also, I suppose, some question about whether the judicial review process under the Electoral Count Reform Act can be invoked in the event that Trump wins to raise the challenge that way, although as a practical matter, I don't know if that would happen because the act says that only a candidate can bring such a challenge. And it's not clear to me that any of the candidates will want to, or that if it's a minor party candidate who does, whether that will be taken seriously by the federal courts. So that's, I guess, another question because the, the Electoral Count Reform Act is also not mentioned in any of the opinions.

Quinta Jurecic

I did want to ask you all what you made of the framing of the Court's opinion. Obviously, the majority opinion is fashioned as a per curiam. That's often used when the court wants to indicate unanimity, but there's actually not that much unanimity here. There's 9-0 for the judgment. I think it depends how you count Barrett, whether the ruling on the scope of congressional power is 6-3 or 5-4, but the liberals are quite furiously in dissent here. So, what do you all think of how the Court is fashioning itself? What are they trying to communicate? Roger, let me start with you.

Roger Parloff

Obviously, Justice Barrett went out of her way to say we are unanimous here. That's the takeaway. And so, I think six of them wanted that to be the takeaway. Three of them did not want that to be the takeaway. There was all this speculation. Somebody noticed that, apparently, if you double click here and or if you do a search, that at some point along the line, the three-justice concurrence was Sotomayor dissenting in part and concurring in part. So that led to a lot of speculation about what happened here. It's very hard for me to understand. Maybe the other panelists have some insight. I don't even see how somebody could dissent in part and concur in part on something like this. So, I don't think I have any further insights. There are per curiams. I mean, per curiam also just means--it doesn't mean we all agree. It means nobody's taking credit or blame for the actual, whole opinion or, perhaps, it's a joint effort. And that was actually true of the three-justice concurrence in the end, too, that it's not a concurrence by Sotomayor that the other two join in, it's, shared. But I'm sure the other panelists have other insights than I do here.

Quinta Jurecic

Yeah, Gerard, Ned, I'd welcome your thoughts.

Ned Foley

What I would add, this is somewhat speculative, but I think this is an accurate reading the tea leaves, so to speak. That separate three justice-concurrence reads to me as if it was responding to a majority draft that went further than what we publicly now see, and that the majority draft that was released was cut back considerably from what it had been internally, but not enough to please the three, and I'll call them the three dissenters because I think the tone of their opinion is more of a dissent. There probably was negotiations and if we assume that Chief Justice Roberts was probably taking the lead in what became the per curiam, there was an effort on his part to agree to take some language out in the hope that it maybe avoid, the separate dissenting opinion. But he didn't take enough out and they wanted to still publish their opinion as opposed to just joining Barrett's short statement that you don't need to go further. And so the clock was ticking and the effort at compromise achieved maybe some adjustments, but when the deadline came, in terms of Super Tuesday, they had to release what they had. And that's why we're left with this rather messy situation.

Gerard Magliocca

Right. I mean, I think they said too much and they said too little. If they had just stuck with the idea that states can't enforce Section 3 against presidential candidates, they could have had a unanimous single opinion for all nine, which might've been better, or at least some people would have thought it was better. But since they went out of their way to say more, then they probably should have kept going and just foreclosed all other enforcement measures to settle the matter, even if they were going to get criticized for commenting on all sorts of things that weren't raised in the case, because they're already getting criticized for that. So why not do the job thoroughly, if you're going to go down that road? So what you get instead is you don't get the single opinion, but you also don't get the clarity of a majority saying certain things are just off the table. So that's unfortunate. My only other thought is, I wonder a little bit if the three concurring justices are also upset about the grant of review in the immunity case and this is their way of saying that without saying it directly?

Quinta Jurecic

Yeah, I will say reading the concurrence by the liberals, I was really struck by what seemed to be a divergence between just how harsh the rhetoric was. They open by citing Roberts's concurrence in Dobbs. They cite Justice Breyer's dissent in Bush v. Gore. They, as I think you said, Roger, they accuse the majority of trying to protect the former president from future action in this area. With just how relatively narrow the disagreement between them and the majority seemed to be, they're really slicing it quite fine. We've touched on this a little bit, but I wonder if we could dig in more on what the divergence there is. So the majority is not only saying Section 3 requires some kind of congressional enforcement, but that the enforcement legislation in question has to conform to particular criteria. Roger, maybe let me go to you, what specifically is the majority arguing here?

Roger Parloff

Well, they're saying it's a version of what's called Griffin's Case from 1869, where it's a portion of it. See, I think what the problem, the obvious reason they don't stop with the 9-0 part is that it leaves open a lot of possibilities for challenge in the future, challenge if Trump becomes president, if he issues an executive order, and somebody violates the order, and then he could raise in his defense, “Well, you're disqualified. You can't issue an order.” And then you would still have this incredibly live issue with the president of the United States. There's also, as Ned said, there's obviously January 5th, 2025, what happens there? And so the five in the majority wanted to fix this once and for all. And in the briefing--there was an interesting brief, an amicus brief from Seth Barrett Tillman and Josh Blackman, where they were making two arguments: We should follow Griffin's Case, which was this 1869 case where Chief Justice Chase, sitting as a circuit judge, said that basically Section 3 is, not self-executing. It doesn't do anything until Congress enacts enabling legislation. But although they made that argument, they also told the Court that you can't stop there because that won't solve the issue about what happens on January 5th. And they said, so to solve that, you have to adopt our other argument, which is that the president is not an officer of the United States within the meaning of Section 3, which means Section 3 simply doesn't apply to Trump, and that will solve the problem once and for all. And I gather they couldn't get five votes for that. And so they had to use this version of Griffin's Case. It's not exactly Griffin's Case because they say it is self-executing as to state officials. But, we're going to use a couple sentences from it, apply it to federal officials, and we're going to try to fudge it and say that's sufficient.

And that that preempts the whole field and that Section 3 is basically dead until Congress enacts legislation. And so I think that's the dispute and that's where certainly the three concurers step off, and they get bent out of shape.

Quinta Jurecic

Let me dig in on Griffin's Case. Gerard, I want to turn to you on this one. Can you explain what that is? And what you make of the Court's use of it here?

Gerard Magliocca

Well, when I walked out of the argument, I said to someone, “Okay, basically what we're going to get is Griffin's Case lite.” And that's what we got. So in other words, Griffin's Case was a circuit decision, as Roger said, from 1869, which commented that to enforce Section 3, you need an act of Congress to enforce it against anybody. Okay. So the Court didn't agree with that because that would then mean that you need an act of Congress for a state to enforce it against its own state officials. And that went too far for those of the justices who are keen on federalism or states’ rights. So instead, they came up with this new modified version of the statement in Griffin's Case, which is that you need an act of Congress to enforce it against national officials or candidates. Though even there, they said in the opinion, “Well, of course, each house of Congress did disqualify people in reconstruction on Section 3 grounds and there was no act of Congress involved. So, okay, can't always be the case and other that you need an act of Congress.” And people since the decision have pointed out, “Well, look, Congress could impeach somebody for being an insurrectionist. There's no act of Congress involved there, so it can't always be the case that you need an act of Congress.” But Griffin's Case is the only precedent to really support anything of the sort that the Court is saying. And so they, as Roger said, they took a little piece of it and just grafted it onto, Frankenstein-style, grafted it onto the rest of what they were saying to make it look a little better. There is an interesting connection between Griffin's Case and this case in that in both you could argue that the Court or judges in question decided they were more frightened of the consequences of enforcing Section 3 as written than of the consequences of writing an opinion that doesn't make all that much sense in saying why you can't apply it. So, there is a through line there from 1869 to 2024.

Quinta Jurecic

Ned, curious for your thoughts.

Ned Foley

Yeah, I think Gerard made the key point that this notion that Section 3 can only be enforced through congressional legislation as to federal officials is not true, as the majority itself acknowledged, with respect to the points that Gerard made. So each chamber of Congress under Article I Section 5 can enforce Section 3 without enabling legislation and the Impeachment Clause, likewise, does not require enabling legislation. And that's why the big huge question here is what is the status of the joint session of Congress under the 12th Amendment on January 6th, 2025 to count electoral votes? Does that require enabling legislation, if votes are going to be objected to, electoral votes, on the grounds that they were not regularly given because they were cast in favor of an insurrectionist? Does Congress have that power under the 12th Amendment or does Congress have to enact a statute in advance to enforce Section 3? And if a statute is necessary, as Gerard said earlier, Does the Electoral Count Reform Act itself constitute qualifying legislation? Part of what I think the dissent, and I'll call it a dissent on this point, was so upset about was the invocation of the so-called Boerne decision, which establishes what's known as the congruence and proportionality test to constrain legislation that Congress enacts under Section 5 of the 14th Amendment to enforce any part of the 14th Amendment.

Now, Boerne was developed for enforcement legislation with respect to Section 1 of the 14th Amendment things like the Equal Protection Clause and the Due Process Clause and so forth. But it's the same Section 5 that gives Congress a power to enact enforcement law. And the per curiam opinion here relies very heavily on Boerne to say that the congruence and proportionality standard from Boerne applies to any Section 5 legislation that would exist. It doesn't exist now, but any such legislation would have to satisfy congruence and proportionality. And that implies the possibility of judicial review to invalidate such legislation. The Supreme Court has invalidated a lot of legislation over the last two decades under the congruence and proportionality test. It's a notoriously vague test. Justice Scalia is famous, in a case called Tennessee v. Lane, of abandoning the test after upholding it for a number of years but said, “It's a tape measure with no standard. It's flabby. No one knows what it means.” And if that's the test that's going to apply to congressional legislation to enforce Section 3, there's a lot of murky waters ahead. And when you combine the snippets of the Griffin Case with the congruence and proportionality test, you get even more questions because the quoted language from Griffin was all about the need for legislation that identifies the exact procedures that would be used in an evidentiary trial, what's the burden of proof, exactly how the structure of this. So there was a lot of specificity that the per curiam opinion seems to require for any Section 3 legislation to pass congruence and proportionality. And the Electoral Count Reform Act, whatever you think of it, isn't written in terms of Section 3, specifically, it's not tailored to that. It's a general piece of legislation. And so there's been this debate about can, under the per curiam standard, can Congress enforce Section 3 through general laws or does it have to be a specific enactment tailored uniquely to Section 3 in the concept of insurrection?

So I think those are some of the real uncertain questions left open by this per curiam opinion.

Roger Parloff

And if I could just follow up with a question there, because that City of Boerne thing really, confused me. I mean, here they're going out on a limb already saying you need federal legislation to go against federal officials. And as a practical matter, it's so unlikely we're going to get any federal legislation of that type. And then they go further and say, “By the way, if you do enact it, we can look closely at it through City of Boerne. What do you think will police it in essence? Why do they step two steps ahead and already begin limiting discretion for that legislation when there's no legislation? What are they afraid of? What are they anticipating?

Ned Foley

Well, I think that's a really important point. And this is where there's been some debate, discussion, disagreement among professors looking at this is exactly what's on their mind and what they're trying to achieve. I think you, Roger, mentioned the fact that in the air is the possibility of a lawsuit against an executive order that Trump might issue if he becomes president again, and that is a huge can of worms. And so the idea would be whether there could be any judicial enforcement in that context of the Section 3 standard. I think it's fair to say that the per curiam is trying to say there, “No, you need legislation enacted by Congress before any court can begin to adjudicate a Section 3 issue about was January 6th an insurrection, was the former President Trump engaged in the insurrection, et cetera, et cetera. Those are judicially off limits in any lawsuit absent enabling legislation by Congress.” I think it's fair to read the per curiam that way. And I think the whole point about the Boerne standard is that the tailoring required by congruence and proportionality would apply to that legislation. There's a case called Nevada Department of Corrections v. Hibbs, which Chief Justice Rehnquist wrote that applies the concept of tailoring to congruence and proportionality of exactly what kind of enforcement statute is appropriate under Section 5 of the 14th Amendment. And so I think they're invoking it in that context.

The big uncertain question is whether any of that dicta, if you will, applies not when the enforcement of Section 3 is happening in a lawsuit, but instead is happening in Congress itself. Again, we know if the enforcement of Section 3 is happening in a single chamber of Congress with respect to a congressional election, none of that Boerne congruence and proportionality applies at all. Not only don't you need enabling legislation, it's pretty well settled that each chamber has exclusive authority to make those judgments as it does in the context of impeachment. And the political question doctrine would be invoked to say that the courts can't second guess how each chamber enforces its own rules and procedures under Article I, Section 5. So several election law scholars and others are reading the per curiam as saying all that stuff about Boerne and congruence and proportionality only applies to judicial enforcement of Section 3. It would not apply to congressional enforcement of Section 3 either in a single chamber context with respect to a congressional election or in the joint session context with respect to a presidential election, and so not applicable.

My own view on this is that's up in the air, and I wouldn't be surprised if the per curiam had tried to write the earlier draft in such a way as to rule out Section 3 enforcement without anticipatory legislation in the context of the joint session, because that was, as you said, Roger, in various amicus briefs, there was a robust discussion of the fact that if the Court relied on Griffin and essentially punted Section 3 to Congress and said, “Hey, this is up to Congress,” it was inviting the possibility that Congress would accept the invitation and then enforce Section 3 on its own, not now, but after the election. And full disclosure, I was the author of one of the amicus briefs saying that that would be a terrible idea and I still believe it would be inappropriate for Congress, even if it has the power to do so, to try to enforce Section 3 after the election. It's unfair to voters. The time for enforcement is before voters vote, not afterwards. But if the majority tried to foreclose that, to go as far as Gerard said, to just write the whole thing and say, “There's going to be no enforcement of Section 3 against Trump in any context without an enabling legislation that would not exist,” that's what's provoked the wrath of the liberals. And so I think the per curiam cut back on any reference that was specific to the possibility of congressional enforcement in the context of the joint session. And that's what leaves us with this muddle that you could read it either way. Either legislation is required in that context, like a judicial context, subject to Boerne and congruence and proportionality, or no, it's not, and the joint session is like Article I, Section 5, and Congress is free to do whatever it wants within its own domain, and the per curiam just is silent on that key point.

Gerard Magliocca

Yeah, I'll add one thing, which is the irony here is the Electoral Count Reform Act was designed to eliminate the role of the joint session in having to make any decisions. Because it says, look, the vice president doesn't do anything, just ministerial. And if somebody has an issue with the certification of electoral votes, there's a judicial review process for that, and whatever the courts say will be conclusive in Congress. So, the whole point of it was to say, look, we want this to be settled by courts, not by Congress, and we don't want to scrum every January 6th about who the real president is. And the problem is, well, yes, but depending on how you parse the opinion, in relation to the Electoral Count Reform Act, maybe you say that that provision cannot be used for a Section 3 challenge. And it also, of course, leaves the challenge in the hands of candidates. And you can understand why someone who's the losing candidate may not want to bring a challenge because they're going to look like sore losers or be criticized. But then what does that do? It ends up pushing everything back to the joint session to decide in a very messy, chaotic way. I mean, especially of course, in the unlikely, but not impossible event that Trump wins and the Democrats win control of both houses of Congress.

Ned Foley

I would just add to that, I do think as a practical matter, there will be no enforcement of Section 3 in the joint session if the Democrats don't win the House of Representatives. The Senate is more complicated. Again, I think it's unlikely that the Democrats would be successful in picking up the votes. There will be three republican senators on January 6th, 2025, who voted to convict Trump on the second impeachment and so, in essence, have already made the factual determination that he was responsible for the insurrection and should have been convicted for that, removed from office and presumably ineligible to serve again. Those are Collins, Murkowski and Cassidy. Now what they would do in the future, it's not their prior vote is not binding on them, but I can imagine a rhetorical effort if Trump does win on the part of Democrats who are never-Trumpers and other people who are never-Trumpers to say, “Those members of Congress who were already on record holding Trump responsible for the insurrection should stay true to that responsibility and prevent him from taking the oath of office again.” And if the Democrats have the votes for that in the House, it becomes an open question between November of this year and January of next year, whether they can muster enough votes in the Senate. And to me, that risks grave political instability for an extended period of time. And so, to the extent that the Court here was trying to foreclose that instability, I don't think it did it successfully.

And the last point about the Electoral Count Reform Act is an important but somewhat complicated piece of legislation. As Gerard said, there's elements of it which apply prior to the date in December that the electors cast their vote and there's the possibility of litigation over the certification of the appointment of the electors based on state law. So we could potentially see a Section 3 issue coming up in that context, although I think since that would be judicial context, again, I'm not sure Boerne would satisfy the Court there. But the really important provision in my mind of the Electoral Count Reform Act is a provision that existed in the prior 1887 Act, which doesn't concern the appointment of electors. It concerns the electoral votes that duly appointed electors cast.

There's two grounds for objecting to electoral votes that are valid under the new ECRA. One is there was something wrong with respect to the appointment of the electors. Let's just set that aside. The other one is that even if the electors were properly appointed under state law, their electoral votes were not regularly given. And there's important scholarship on what does that mean to say an electoral vote is not regularly given? And one of the grounds for saying something's not regularly given is that it's not cast for someone who is entitled to be president. And the per curiam opinion seems to acknowledge that if the electors vote for somebody who was 25 years old or vote for somebody who was not a U.S. citizen or voted for somebody who already had two terms, Congress is not disabled in the joint session and under the 20th Amendment from enforcing those essential qualifications to have somebody take the oath of office as president under the Constitution. And so the question still remains if members of Congress in their judgment believe that the winning candidate in the electoral college is ineligible to serve, do they have the power under the 12th and 20th Amendments and the statute that exists in the ECRA to make sure that an unqualified person never takes the oath on January 20^th? I don't think the per curiam opinion was successful in foreclosing that issue as much as it probably tried to do so, but that's what provoked the wrath of the three liberals.

Quinta Jurecic

Almost immediately after the Court released its ruling, Democratic Representative Jamie Raskin came forward and said that he was thinking about what his role might be, whether there might be legislation, that he could introduce that would allow Congress to weigh in on this matter of disqualification. Ned, I'm curious for your thoughts of where we go from here, what that might look like in Congress, what you're expecting to see as people figure out what next steps the Court has allowed room for them to take, and also the wisdom of those next steps.

Ned Foley

Well, I can understand why Democrats in Congress might try to adopt new legislation of the type that the per curiam seems to call for, but that just seems an impossible task under the current Congress. I have heard some people talk about, theoretically, that if the Democrats take back the House, that between January 3rd, when Congress sits and January 6th, when the joint session occurs, that there's a three-day window to pass emergency legislation. That seems impractical because the filibuster rule would presumably apply and who knows again who's going to control the Senate.

So, setting aside the extreme unlikelihood that there's going to be new legislation that would enforce Section 3 before January 6^th--and again, this is all predicated on the assumption that, that Trump prevails in the electoral college--and only the members of Congress consulting their own lawyers on their staffs and so forth can answer the question whether they think they have the power under the Constitution in light of this decision to enforce Section 3 under the existing legal regime. And I would say the relevant pieces of law for that are the 12th Amendment itself, the 20th Amendment, and the Electoral Counter Reform Act. All three sources of law are relevant to what Congress does on January 6th in preparation for the inauguration on January 20^th.

And I'm glad, Quinta, you asked the question of what's a good idea or not, because my own view of reading this opinion is that Congress does still have the raw power under those three provisions to enforce Section 3 if it wants to, but I personally, as an election law person, think it would be a terrible idea for Congress to exercise that power that they have at that time, because I think it's so unfair to voters who would have cast their ballots in November. And I just think if you're going to disqualify a presidential candidate, you need to do it before the votes are cast rather than afterwards. But I do think it is a plausible argument to read this opinion and then the three sources of law that I cited that Congress still has this raw authority if it wants to exercise it. But I also agree with those, and maybe, Roger, this was something you said at the outset, that I think the Court was trying to send a signal very hard in its per curiam that Congress doesn't have that power, that without the appropriate legislation that the Court per curiam decision has in mind, Congress itself is also disabled from enforcing Section 3. So, I think the per curiam can be read either way. And so, it's up to members of Congress, both the House and the Senate, to decide both how they want to read the law as to their power and then whether or not they want to exercise that power.

Gerard Magliocca

Yeah, I'll add one complicating factor here is if Trump is convicted in one of these criminal trials later in the year, because I think that that ratchets up the stakes or the polarization, if you will, about his return to office in a way that isn't true if you just are saying you think he's ineligible under this constitutional provision. Meaning I can imagine if there is a conviction, you're going to see more Democrats in Congress saying, “We're not going to certify this guy if he wins,” even though the criminal conviction, of course, has nothing to do with Section 3 of the 14th amendment, because the New York case has nothing to do with that and none of the classified documents case has nothing to do with that. But I do think that is an incendiary thing that we just don't know how people are going to respond to it if you have a conviction and an election, right? And I don't know then what people will think about that. So that's just something that we'll see how that plays out.

Roger Parloff

Are we all on the same page here that if Jack Smith had charged Trump with insurrection, we would be in a most extraordinary moment right now, or it does appear that they all agreed that you could disqualify somebody with a conviction for that, right?

Gerard Magliocca

I think you could read the opinion to be saying that, or at least saying that that would be the level of procedural and substantive certainty that would be sufficient to justify a disqualification without congressional amnesty. Of course, I don't know what that would mean if you convicted somebody--well, I mean, I guess the conviction would have to happen before inauguration anyway, because then the case would be halted, right, if Trump were to win, so it wouldn't come up in that context. So yes, that's true. I guess someday we'll find out why Smith decided not to indict for insurrection, since it was a possibility. It was recommended by the January 6th committee, right? And he obviously had some prudential reason for not wanting to do that and may have had nothing to do with Section 3, but it's just interesting because there must have been some debate within the office about whether to bring that charge or not.

Quinta Jurecic

Roger, I was curious what your thoughts were about this 2383 issue because I remember at the time that we were looking at this at Lawfare and thought that perhaps Smith hadn't gone forward with a 2383 charge because of First Amendment implications, if it was tied to Trump's speech on the Ellipse. Does that sound right to you? I mean, would you expect--I've seen some suggestion that perhaps Smith could go back and charge it again. Would you expect to see that here?

Roger Parloff

Well, I do agree that the most likely reason he didn't charge it is all the First Amendment questions about incitement. A very distant, second, conceivable possibility is there's a very, very weak double jeopardy argument can be made because the impeachment was for incitement and he was acquitted and he would make that argument. I don't think any court in the world would accept that that would be double jeopardy. So, I assume it was the First Amendment question. Would he go back now and do it? It's awfully late in the game to do that. I believe he would have to convene a new grand jury. I don't know if that's procedurally permitted at this point. I think he lost the chance, but there were lots of people that always thought, why didn't you do this? And I was among them. I think we went in the back door here and the front door was insurrection. That was the most obvious thing and I assume he avoided it because of the First Amendment morass.

Quinta Jurecic

After the decision came out, Michael Rappaport, who's a prominent originalist scholar, wrote a pretty scathing blog post calling the opinion, and I quote, “an originalist disaster.” So, Gerard, you've looked closely at the history of Section 3 here. Do you think that's a fair description?

Gerard Magliocca

Oh, definitely. I mean, it's not anywhere close. It's filled with errors, basically. And you can chalk up some of that to the rushed nature of the decision, especially if there were revisions going on at the last minute. I'll just rattle off a couple. First, they describe Section 3 as a severe penalty. And it's neither. It is neither severe nor a penalty. It's not a penalty because it's not being enforced through criminal law. And it's not severe because the framers made clear that they wanted this to be a mild sanction and that it was far milder than had been given to any insurrectionist in any insurrection ever before. Then there's this argument that, well, because the 14th Amendment gives more power to Congress and imposes new limits on the states, that means that the states cannot enforce aspects of the 14th amendment, at least Section 3. That also doesn't follow. I mean, the original Constitution in 1787 gave more power to the national government and placed new limits on the states, but nobody thinks that means that the states can't enforce provisions of the original Constitution. They do it all the time. And then also they say, for example, well, there's only one example of a state official just trying to disqualify a federal official, as if that's very weak support. But then when you think about it, first of all, there aren't that many examples at all, right? It's just because the litigation in that period was only going on for a couple of years before amnesty was given to most everyone. And there weren't that many federal officials who were insurrectionists. Most of them were Republicans, right? They weren't going to be disqualified by any state official. So, when someone popped up who was, state official took action to try to disqualify them.

I could go on, but in some ways says the opinion is disrespectful to the people who wrote, ratified, and died for the 14th Amendment because here's their first opportunity to interpret a constitutional provision and they're probably not going to get another chance to do that in the careers of the people currently on the Court. And they gave it this very cursory treatment that I think it deserved a lot more. I understand why they did what they did. But they could have done better.

Quinta Jurecic

Yeah, I recall you wrote a blog post at one point, Gerard, after arguments suggesting that this was a case where, as lawyers like to say, “The opinion won't write.” And I wonder if the opinion didn't write, but they went ahead and wrote it anyway.

Gerard Magliocca

Right. That’s true. What I meant by that, of course, was not that you couldn't write an opinion reaching the conclusion they wanted to reach. It's just that any opinion you did write reaching that conclusion was probably not going to make a whole lot of sense. And that's what you got.

Quinta Jurecic

Ned, Roger, any final thoughts on that score?

Ned Foley

I support what Gerard said and would extend it to the election law aspects of it. Yes, we like uniform national uniformity with respect to presidential elections, but the original understanding of the electoral college was precisely the opposite to give all 50 states control over the appointment of their own electors. And so this is anachronistic thinking grafted onto the Constitution as opposed to an accurate reflection of what the Constitution itself provides.

Quinta Jurecic

Yeah, I think it says a lot that we've been talking for almost an hour about this opinion and we still haven't had time to get to all of the ways in which it's just wrong. So maybe we need a separate podcast to discuss that. But Ned, Gerard, Roger, thank you so much for joining us.

Roger Parloff

Thank you, Quinta.

Ned Foley

Thank you.

Gerard Magliocca

Thanks.

Quinta Jurecic

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