The Supreme Court Just Erased Part of the Constitution
"As of Monday, March 4, 2024, Section 3 of the 14th Amendment of the Constitution is essentially a dead letter, at least as it applies to candidates for federal office. Under the U.S. Supreme Court’s ruling that reversed the Colorado Supreme Court’s decision striking Donald Trump from the state’s primary ballot, even insurrectionists who’ve violated their previous oath of office can hold federal office, unless and until Congress passes specific legislation to enforce Section 3.
In the aftermath of the oral argument last month, legal observers knew with near-certainty that the Supreme Court was unlikely to apply Section 3 to Trump. None of the justices seemed willing to uphold the Colorado court’s ruling, and only Justice Sonia Sotomayor gave any meaningful indication that she might dissent. The only real question remaining was the reasoning for the court’s decision. Would the ruling be broad or narrow?
A narrow ruling for Trump might have held, for example, that Colorado didn’t provide him with enough due process when it determined that Section 3 applied. Or the court could have held that Trump, as president, was not an “officer of the United States” within the meaning of the section. Such a ruling would have kept Trump on the ballot, but it would also have kept Section 3 viable to block insurrectionists from the House or Senate and from all other federal offices.
A somewhat broader ruling might have held that Trump did not engage in insurrection or rebellion or provide aid and comfort to the enemies of the Constitution. Such a ruling would have sharply limited Section 3 to apply almost exclusively to Civil War-style conflicts, an outcome at odds with the text and original public meaning of the section. It’s worth noting that, by not taking this path, the court did not exonerate Trump from participating in an insurrection.
But instead of any of these options, the court went with arguably the broadest reasoning available: that Section 3 isn’t self-executing, and thus has no force or effect in the absence of congressional action. This argument is rooted in Section 5 of the amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
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But Section 5, on its face, does not give Congress exclusive power to enforce the amendment. As Justices Elena Kagan, Sotomayor and Ketanji Brown Jackson pointed out in their own separate concurring opinion, “All the Reconstruction amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation.” While Congress may pass legislation to help enforce the 14th Amendment, it is not required to do so, and the 14th Amendment still binds federal, state and local governments even if Congress refuses to act.
But now Section 3 is different from other sections of the amendment. It requires federal legislation to enforce its terms, at least as applied to candidates for federal office. Through inaction alone, Congress can effectively erase part of the 14th Amendment.
It’s extremely difficult to square this ruling with the text of Section 3. The language is clearly mandatory. The first words are “No person shall be” a member of Congress or a state or federal officer if that person has engaged in insurrection or rebellion or provided aid or comfort to the enemies of the Constitution. The section then says, “But Congress may by a vote of two-thirds of each house, remove such disability.”
In other words, the Constitution imposes the disability, and only a supermajority of Congress can remove it. But under the Supreme Court’s reasoning, the meaning is inverted: The Constitution merely allows Congress to impose the disability, and if Congress chooses not to enact legislation enforcing the section, then the disability does not exist. The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress — with the lowest bar imaginable: congressional inaction.
As Kagan, Sotomayor and Jackson point out, this approach is also inconsistent with the constitutional approach to other qualifications for the presidency. We can bar individuals from holding office who are under the age limit or who don’t meet the relevant citizenship requirement without congressional enforcement legislation. We can enforce the two-term presidential term limit without congressional enforcement legislation. Section 3 now stands apart not only from the rest of the 14th Amendment, but also from the other constitutional requirements for the presidency.
In one important respect, the court’s ruling on Monday is worse and more consequential than the Senate’s decision to acquit Trump after his Jan. 6 impeachment trial in 2021. Impeachment is entirely a political process, and the actions of one Senate have no bearing on the actions of future Senates. But a Supreme Court ruling has immense precedential power. The court’s decision is now the law.
It would be clearly preferable if Congress were to pass enforcement legislation that established explicit procedures for resolving disputes under Section 3, including setting the burden of proof and creating timetables and deadlines for filing challenges and hearing appeals. Establishing a uniform process is better than living with a patchwork of state proceedings. But the fact that Congress has not acted should not effectively erase the words from the constitutional page. Chaotic enforcement of the Constitution may be suboptimal. But it’s far better than not enforcing the Constitution at all."
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