Courthouse Steps Decision: Trump v. Anderson

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Jack Capizzi:  Well, hello, everyone, and welcome to today’s Federalist Society FedSoc Forum. Today, March 4, 2024, we are presenting a Courthouse Steps Decision program in the case of Trump v. Anderson.

 

Today, we are delighted to be joined by Derek Muller, who is a Professor of Law at Notre Dame Law School. Once Professor Muller has given his remarks, we will turn to you, the audience, for any questions that you might have.

 

If you do have a question now or at any point, please type it into the Q&A feature at the bottom of your screen, and we will answer those as we can towards the end of the program. With that, thank you all very much for being with us today. Professor Muller, over to you.

 

Prof. Derek T. Muller:  Sure. So Trump v. Anderson—I’ve been on enough of these calls and related calls. I think you might be familiar with it, right?

 

The state of Colorado in a 4-3 decision by the Colorado Supreme Court had held that Donald Trump had engaged in insurrection for purposes of Section 3 of the Fourteenth Amendment. As a result, it concluded he could not appear on the Republican primary ballot in that state, kept him off it, but stayed the ruling as the decision was appealed—the United States Supreme Court, which had expedited review—and issued its decision today. It took a little over three weeks for it to issue the decision. And so now, we have that long awaited decision.

 

Unsurprising to most, I think, is after oral argument, the sense was that at least eight justices—if not all nine—were inclined to reverse the Colorado Supreme Court on some theory that the state of Colorado or a single state didn’t have this power to exclude ineligible candidates from the ballot, didn’t have the power to enforce this for varying structural or practical reasons. There’s going to be a question from the Court about how it got there.

 

So the decision came out this morning. It’s a per curiam decision, although—and I shouldn’t speculate—but it reads in some respects like the voice of Chief Justice Roberts. Per curiam, a unanimous result—that is, 9-0—essentially saying that Colorado lacks this power—but some sharper elbows on the path there, the path not only to that one holding, but whether other holdings should be reached.

 

So six justices—Chief Justice Roberts, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—all agreed with the reasoning in the per curiam opinion. And then there was a concurring opinion jointly authored by Justices Sotomayor, Kagan, and Jackson, concurring in the judgment only, but agreeing with the heart of that part of the decision. So I’m going to focus on that for a moment. It’s part 2(b) of the per curiam decision.

 

And that part of the decision really focuses on this overall structural take of the Constitution—actually, from the text structure context and so on. And really, it begins with a quotation from Term Limits v. Thornton, a 1995 case, saying that states had no power to add term limits or additional qualifications for congressional candidates. And from there, it cites that case, which had in turn cited the great Justice Joseph Story in his commentaries in the Constitution, to say that if states are exercising power in federal elections, that power has to come from some source in the Constitution.

 

So if you are looking at Section 3 of the Fourteenth Amendment in the context of a presidential election, where is the state power? Well, it’s certainly not going to be found in the Fourteenth Amendment, which is a constraint on state power. Section 5 gives Congress the power to enforce it. It gives no power to the states. As you run through the rest of the Constitution, you can’t find other provisions of the Constitution empowering states.

 

Article I and Article II deal with congressional elections, but it’s not clear that implicitly within them is the later power to come back and enforce Section 3 of the Fourteenth Amendment by the structural provisions of the Constitution. This is a provision that’s designed for congressional enforcement, for congressional remedies, and congressional mechanisms.

 

As a practical matter, it makes very little sense for states to add these sorts of burdens on presidential candidates. They want to do it for state candidates. It’s their own thing. But to do so for presidential candidates makes very little sense. It makes very little sense given that Congress can lift the disability by a two-thirds vote. So for a state to step in and hold a candidate not qualified for Congress to swoop in later and have to say, “Well, now, we’re going to lift the disability so this candidate is not disqualified” would seem to burden Congress.

 

And at the very end, there are a series of practical concerns that one state’s evidentiary law or one state’s procedural setup for how these challenges are filed could have a ripple effect throughout the United States, and we might reach inconsistent verdicts across the United States. And states in particular have less of an interest in presidential elections simply because they are national offices—the national office in nature. And the notion that states could adjudicate qualifications, make these determinations, and contested factual claims and reach kind of a patchwork result across the United States, not something that makes a whole lot of sense structurally.

 

So that was part 2(b) of the per curiam opinion joined in full by Justice Barrett and joined again in logic—if not in full—by the concurring opinion by Justices Sotomayor, Kagan, and Jackson. So that could have been it, right? That would have been a lot easier of a story to talk about. But instead, there got to be a lot of friction on the Court in a different context.

 

So part 2(a) of the opinion—and this is where Justice Barrett peels off along with the other concurring justices—addresses a separate question, which is not whether or not states have the power to enforce Section 3 of the Fourteenth Amendment. It’s more a question of who else and in what context has the power to enforce Section 3 of the Fourteenth Amendment.

 

And for that, the Court turns to the way that Section 3 is set up. It speaks about how Congress has this role now to enforce the provisions of Section 3 of the Fourteenth Amendment. Section 5 of the Fourteenth Amendment provides for Congress to have the power to enforce this provision of the Constitution with appropriate legislation.

 

That appropriate legislation must meet in the words of other Supreme Court precedent, including City of Boerne v. Flores, must be congruent and proportional to remedy the concerns that are addressed by these provisions of the Constitution, that when Congress steps in and enforces, it provides this holistic, remedial scheme.

 

And when we look at the fact that we’re dealing with this question insurrection—and Justice Kavanaugh at oral argument did say the word “insurrection” stands out to him—it requires an ascertainment or requires a determination. This is something the Colorado Supreme Court recognized was necessary in this case, the determination of whether someone engaged in insurrection, which required procedures and factual findings.

 

And this is also what Justice Chase on the United States Supreme Court—then riding circuit -- the circuit justice, 1869—said in a case called Griffin’s case. And Griffin’s case has a lot of attention in some of the scholarly discourse where a federal judge was sitting in habeas 1 year after ratification of the Fourteenth Amendment, which is ratified in 1868.

 

So in 1869, he’s sitting in habeas, and he’s hearing a habeas challenge from Griffin, who had been convicted in West Virginia state court. And he’s challenging the conviction in federal court to say, “Well, my conviction is invalid because it was adjudicated or issued by a judge who was barred from holding office by Section 3 of the Fourteenth Amendment.”

 

And Chase, writing this opinion, says, “Look. I’m not in a position to be able to determine these things. In part, I have to make a determination”—or to use some of the language that the Court here quotes from—“proceedings, evidence, decisions, and enforcements of decisions are indispensable,” saying unless he’s given some guidance, especially from Congress, to figure out what to do here, the justice is not in a position to make this adjudication in Court.

 

So part 2(a) of the opinion really rides heavily on Congress’s role here. Congress’s role, the language says Congress -- or the Constitution empowers Congress. It enables Congress, subject to judicial review, to pass appropriate legislation. And Congress’s Section 5 power is critical when it comes to Section 3.

 

So the Court provides these sorts of statements as it then leads into the argument that the state lacks the power. At the very end of the opinion, the per curiam opinion says these two things kind of go hand in hand. All of these things are essential. It’s that Congress is the one that does these things and that states lack the power to do so.

 

Now, Justice Baer writes separately to say, “I agree on the state's lack of power. We don’t need to decide anything else today. I would not go in the path that the majority has done.” And then you have the concurring opinion—the concurring opinion by Justices Sotomayor, Kagan, and Jackson.

 

Again, while they seem to agree with part two of the opinion essentially agreeing that states don’t have any such authority, they fracture very badly with the majority’s approach thinking about this congressional role. Some of the language the Court -- that the concurring opinion uses, saying that these musings about Griffin’s case and about congressional power are as inadequately supported as they are gratuitous.

 

And they go on to suggest that Section 3’s text doesn’t say that this is congressional enforcement alone. They point out that other provisions of the Constitution—including the Reconstruction Amendments, including things like due process and equal protection, the abolition of slavery—don’t require additional congressional implementing legislation. They worry about how this is going to be applied in the future and whether or not they’re adding these constraints on how Congress goes about enforcing Section 3 and prohibiting other actors from enforcing Section 3.

 

One concrete example they give is the concern that the -- it forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist, and raises a defense on that score. The notion being that without congressional implementing legislation, if you have someone who had taken an oath to support the Constitution, engaged in insurrection, and now was serving as a judge, it would be impossible for somebody to raise a defense to say, “This judge is not authorized to hold this office without some kind of implementing legislation.”

 

So there were some sharp elbows there on the Court on this provision—again, five justices. So there was a majority on the view that this is something that requires congressional legislation, at least to some degree, along with a series of a more general agreement that states lack this power.

 

So a few things to talk about here. The first is the Court doesn’t touch really any factual issues. It doesn’t touch questions about whether January 6 was an insurrection, whether Donald Trump engaged in an insurrection, and whether or not his speech or his conduct was protected, was not protected—whatever it was. It doesn’t really touch any of that at all. These are just pure legal questions that the Court is focused on.

 

Another is that this really closes the door and any of these ballot challenges going forward. Whether it’s the primary election or the general election, the Court is quite clear that there’s no role for the state in enforcing these provisions.

 

Another is that the opinion is very centered on Section 3 of the Fourteenth Amendment. So it doesn’t seem to foreclose the possibility that states exercising their power under Article II of the Constitution to exclude, say, a 21 year old from the ballot or a Nicaraguan national from the ballot—might continue to be able to do so.

 

Instead, the opinion looks much more at Section 3 and how the Fourteenth Amendment shifts this balance of power among the federal government and the state governments to say that it’s foreclosing some authority from the states and that there’s not affirmative enforcement authority given to the states as a result of this opinion.

 

So it seems very much cabined to what’s happening with the Fourteenth Amendment and doesn’t really touch on other presidential qualifications disputes, election disputes, ballot access disputes if we’re just dealing with Section 3 of the Fourteenth Amendment.

 

It also seems that it would appear to foreclose challenges even might arise after the election. This is some of the opinion that I’m still wrapping my mind around and trying to understand how different parts of the opinion interact with one another. But the Court’s emphasis on speaking about Congress and legislation and how that remedy needs to be tailored adequately to the remedy or to the harm that you’ve identified really does seem to say that challenges under, say, the Electoral Count Reform Act on January 6, 2025, by members of Congress would be inappropriate or that challenges to agency activity under Section 706 of the Administrative Procedures Act might be improper—that is, to suggest that somebody lacks the authority because they were appointed by somebody ineligible, or because they themselves are ineligible.

 

It’s very hard to identify exactly what the Court is doing when it is suggesting that Congress has a role here with legislation. What are those things that Congress can do apart from legislation, such as ceding its own members versus enacting legislation. What things by—as the concurring opinion points out—general federal statutes, such as the Administrative Procedures Act or the Electoral Count Reform Act? What kinds of deference is going to be given to Congress when it is acting pursuant to those rules, or when courts are acting pursuant to those rules rather than things under its enforcement authority under Section 3 of the Fourteenth Amendment. So there are some myriad questions that are ahead.

 

So it fails to provide some of the clarity, which I think was part of the goal of Section -- of Part 2(a) of this opinion that might close the door on some of these challenges going forward. But I think—and at least my sense is—that the intent of this provision is to foreclose those challenges. And while they might not formally be closed off, I think it was going to be much harder to bring any such challenges. And I’ve already seen a number of suggestions that there’s cold water being thrown on these challenges.

 

So members of Congress are introducing legislation to enforce Section 3 of the Fourteenth Amendment—again, getting the cue from the Supreme Court here that it has a role to play here. And I think there’s very little likelihood that we get through to this Congress, but it is at least the understanding that this is congressional responsibility in a case like this.

 

And again, I think, now, it’s just left to the political process. There’ll be major questions about presidential immunity coming up in the weeks ahead as the Supreme Court hears that case. a number of criminal challenges in the United States, the ordinary political process playing out where candidates are vying for the delegates and trying to get enough delegates to win the convention onto the general election and all the things that happen in that domain.

 

So I think there’s not going to be a closing off of the fact that the public will continue to intensely dispute what is an insurrection, whether or not Trump engaged in an insurrection, and so on going forward. But I think it has at least closed that door when it comes to states attempting to enforce it for their ballot access provisions.

 

So I’m happy to turn it over to the queue for any questions and answers. I should disclose a couple of things. The first is I did file an amicus brief in support of neither party in this case and in the Court below. And the second, I was not cited in this opinion, but not many people were, so I don’t feel particularly bad on that front. But with that, I’ll open it up to any questions we might have, Jack.

 

Jack Capizzi:  Well, thank you, Professor Muller. Looking at the questions that have come in so far -- and as a reminder, if you do have any, please enter them into the Q&A box below. But we have one audience member here who writes, “Justice Barrett in her concurrence wrote that our differences are far less important than our unanimity, which seems aimed at the concurrence by Justices Sotomayor, Kagan, and Jackson. In your opinion, how important was it for the justices to issue a unanimous decision?”

 

Prof. Derek T. Muller:  Yeah. I mean, I think this was the goal from the beginning was to find a path of unanimity and suggest that this is not a partisan issue. You saw in Bush v. Gore -- I actually go back earlier to Bush v. Palm Beach County Canvassing Board—a decision issued on December 4 -- I think it was December 4—in 2000, where it was a unanimous per curiam decision, a pretty short one, saying, “It was a little unclear what was happening in this recount. Let’s send it back for the Florida Supreme Court to clean things up.”

 

I think there was an important, strong show of unanimity from the Supreme Court. There weren’t dissenting opinions. It was trying to move this along, but it did kick the can down the road to a very divisive 5-4 decision that came in Bush v. Gore just a week later.

 

So I think the desire here is -- for unanimity is a good thing. I think that there was a broad consensus at oral argument, and that was sensed out here. I think then having all of the justices agree on the core of the reasoning is a positive thing for not only the clarity of the law but the appearance of impartiality, that regardless of the ideological preferences of the justices, there was strong consensus about the way to reach this result.

 

So I think it was a desirable thing for the Court, but it’s always hard to do. And you can see, even though -- I think it was Andy McCarthy at National Review who called it a unanimous 5-4 decision. And that’s a hard position to be in where you are effectively unanimous on the thing that matters, but you’re unable to sort of muster a consensus of 9 justices on any one path of reasoning or any sort of one’s formal language or formal set of language on the reasoning.

 

So it’s 9-0 on the result, 6 justices agreeing with the heart of the main opinion, 5 justices agreeing with the totality of the main opinion, leaving you in a much more precarious spot. But I think, again, the desirability of sending that signal that it was unanimous was something I imagine justices worked very hard at. And I imagine there’s a little disappointment that they weren’t able to get there all the way.

 

Jack Capizzi:  Well, it looks like we have a few questions related to Section 3 particularly. “Does the opinion deal with the issue of whether Section 3 disqualification applies to the president or only to inferior officers of the United States? And given that it seems like a lot of the time during oral argument was addressing Section 3, is it surprising that there isn’t as much in the opinion regarding that?”

 

Prof. Derek T. Muller:  Yeah. So there’s nothing in the opinion about officeholders, offices of the United States. That part is just sort of elided over—and the notion being an assumption, I think, that the presidency is covered, maybe not some holding, maybe not even express provision saying that it is. But the assumption here is that the presidency is covered on both ends of it.

 

Now, how much weight that carries forward is an open question, I suppose. If the Court just assumes something without deciding, it seems like a pretty big deal if it fails to acknowledge that. But at the same time, there’s no real analysis. And it got a little attention at oral argument, but not a whole lot. So I wouldn’t take too much away from this opinion on whether the president is an officer or not, except to say that the Court just kind of assumes and moves on to address some of the other issues that give them a much broader consensus.

 

The other, though, about Section 3, I mean, I think a lot of this is about Section 3 thinking about how it structurally fits in with the rest of the Constitution or the rest of authority, right? So it’s not dealing with these questions of what is an insurrection and what is “engaged” and what is “officer” and so on.

 

It’s instead asking this fundamental question about what is the role of different actors in our system in enforcing it because the big issue here is that it was Colorado. It was a state court acting pursuant to what it perceived as an interpretation of state law. It’s a state court doing this thing rather than Congress or rather than a federal court.

 

So I think that did attract a significant amount of attention at oral argument to think about how we parse those things out and where they go. But I think, at the end of the day, the Court was not going to provide some 200-page treatise on every aspect of Section 3 of the Fourteenth Amendment. They were instead looking at the result that was going to garner the most votes that they had the cleanest consensus on. And again, they got there with some fits and starts, but they got there at the end of the day.

 

Jack Capizzi:  So one follow-up question on Section 3, “Is there any risk that this case could be construed as requiring congressional action to implement other provisions of the Fourteenth Amendment? Any argument that the case opened the door to undoing the self-executing nature of the Fourteenth Amendment?”

 

Prof. Derek T. Muller:  Yeah. I mean, that’s a really interesting question. I shouldn’t call it a dissent, even though it feels that way at times—what the concurring opinion said. The concurring opinion, really, is saying, “What does this mean for other provisions: for due process, for equal protection, for antislavery, for things like that?”

 

My sense—and again, this is the way that I’m reading the opinion—the opinion is talking about how it is individuals, right? And I think the language -- here’s some language from 2(b) -- 2(a). “It works by imposing on certain individuals a preventative and severe penalty rather than by granting rights to all. It is therefore necessary—as Chief Justice Chase concluded and the Supreme Court itself recognized—to ascertain what particular individuals are embraced by the provision.”

 

So I think when the Court is looking at this, it’s not really addressing what you might say is self-executing. I think they would concede all of it as self-executing. But the question is ascertaining the class of individuals covered by the section. There’s no need to do that with due process and equal protection or slavery, right? It applies to everyone, and so there’s no sort of particularized class finding.

 

But the Court here is looking at it differently to say, “We have to have some kind of ascertainment to determine who is ineligible.” They can say that it’s a distinction not found within the text of the Fourteenth Amendment. But I think, here, the Court is looking much more at the structure and saying, “These other provisions of the Constitution apply to everybody, but we have to identify in the first place who the class of individuals is.”

 

And if that’s the case, it’s unique to Section 3 of the Fourteenth Amendment. And because of that unique need for ascertainment and determination, there needs to be some sort of congressional mechanism to help us get there. So I think that’s how the Court is going to parcel off Section 3 from other provisions of the Reconstruction Amendments.

 

Jack Capizzi:  So, changing gears here slightly, we have a question that’s specific to Justice Thomas. This audience member asks that, “I believe Justice Thomas frequently or always dissents from reliance on legislative history. If so, why did he choose not to do so in this case?”

 

Prof. Derek T. Muller:  Well, I mean, when we talk about legislative history, that could be a little bit different from original public meaning of constitutional provisions, right? So there’s no question that there are these statements made during the ratification debates of the ratification of Section 3 of the Fourteenth Amendment and the Fourteenth Amendment generally.

 

So I think this is a constant debate within textualism and originalism. How do we view public debates around language in Constitutional provisions as opposed to statutory provisions? So there’s less about what you might think of as legislative history in terms of Congress enacting statutes and then floor statements respecting those particular statutes and much more about the congressional record.

 

Now, I will say—and maybe this is the particular provision—there is a language of a quotation from Trumbull, from a member of Congress, who is concerned about enforcement. And there is some statement about the enforcement mechanisms that are being introduced. But again, these are his statements about how he anticipates Section -- the Fourteenth Amendment is going to be used rather than legislative history in the context of statutes.

 

Jack Capizzi:  Thank you. So it looks like we have our final question here. “Did the Court expand Section 5 power in so doing? It seems like they doubled down on Burns’ remedial requirement. But does it permit Congress to become a partner in constitutional interpretation under Section 5?”

 

Prof. Derek T. Muller:  Yeah. I mean, the Court -- a different interesting thing is that members of the Court have had disagreements over the years about whether City of Boerne v. Flores is a good provision of the Constitution still any good—whether or not what we label as “congruent proportional review” is acceptable. Justice Alito has been reticent to join some of these things. Justice Thomas has had some views over the years. He was on the Court for Boerne.

 

So it is a little interesting to see the Court citing it and talking about what appropriate legislation is later in the opinion, describing that statutes have to be tailored to the scheme when we’re dealing with these remedies. So I don’t know that it’s really changing how we think about Section 5.

 

And if anything, it is probably constricting congressional power because I think for a long time, people have thought about Section 5 as really applying to Section 1 of the Constitution—or Section 1 of the Fourteenth Amendment—and have not spent a lot of effort thinking about how Section 5’s enforcement power applies to other provisions. I think it makes sense that you have the same scheme applying across the provisions of the same internal Constitutional amendment, that Section 5 applies the same to Section 3 as it does to Section 1.

 

But I think there’s no question that for the majority—and again, this is much more the 5 justices—are leaning much more heavily into thinking about this relationship of Section 5 to Section 3 and thinking that there’s going to be some constraints on how Congress goes about exercising its legislative power.

 

But again, I think there’s some opaque language in the majority opinion here. It’s sometimes a little hard to get a read on what the majority is doing as opposed to what the concurring opinion thinks the majority is doing. So we’re going to see how that plays out in the debate ahead. But I think to the extent that Congress is not very likely to pass enabling legislation, it might just be an unlikely scenario that we’d have to think about in the future anyway.

 

Jack Capizzi:  Thank you very much. We have time for just one more. This questioner asks if you could discuss what effect this opinion would have for congressional power under the Electoral Count Reform Act.

 

Prof. Derek T. Muller:  Yeah. This is one of the things I’ve been going back and forth fighting about all day. So Congress has passed the Electoral Count Act of 1887. It passed the Electoral Count Reform Act of 2022. These, I think, are pursuant to enforcing its Twelfth Amendment authority to count electoral votes. That’s the Twelfth Amendment, right? So that’s a different provision of the Constitution, different enabling legislation, different power that it might have.

 

To the extent, though, that the Electoral Count Reform Act says that Congress can refuse to count votes that are not regularly given—and that is a phrase, I think, that is best understood as votes not given pursuant to law or that are authorized by law. So things like votes for a deceased candidate and maybe I would argue for an ineligible candidate—that, to me, is something that Congress could do and has the constitutional authority to do.

 

But if it is trying to do that for somebody who’s underage or who is not a natural-born citizen, that’s under Article II of the Constitution. What happens if it’s trying to do it with somebody who has engaged in insurrection for purposes of Section 3 of the Fourteenth Amendment? I mean, this decision, to me, seems to suggest that Congress has to have implementing legislation that is congruent and proportional but it’s tailored to the remedy that it’s trying to provide.

 

And right now, the Electoral Count Reform Act, if you have a challenge to somebody’s qualifications, the chambers separate, and you have two hours of debate, and then you vote. It’s very hard for me to anticipate that a court would look at that and say, “Well, you’ve provided adequate time to review the evidence and adjudicate whether or not somebody is qualified,” right?

 

Again, the Court seems very much concerned about how Colorado with a five-day trial and its own procedures did not -- was unable to do this and how Congress has done so through its own enforcement mechanisms, typically through the judicial process. It’s done so in other places. Article I, Congress can refuse to seat its own members, and it’s done that on its own through its own elections committees that take some time usually to resolve these disputes.

 

But all that is to say, the suggestion here might be that -- and if you’re going to enforce Section 3, the Electoral Count Reform Act might not be enough and that there’s really no responsibility -- or no role for Congress to do that here unless they’ve passed some separate enabling legislation that meets Section 5’s congruence and proportionality requirements.

 

There’s a major question, though, I think, about what would happen if Congress on January 6, 2025, tried to enforce this and tried to refuse to count votes. Would the Court really step in at that point in time and say, “No, you don’t have this power”? Would it say that the power of counting is actually a non-justiciable political question that we leave to Congress, which has the authority to judge the counting of electoral votes?

 

This is a major area of uncertainty that I’ve been trying to work through all day, and I don’t have a great answer for you except to highlight and frame what the debate is and what the conversation is going to look like in the months ahead.

 

Jack Capizzi:  Well, I think that that would be a great place to end. With that, thank you all very, very much for being with us today, and, of course, to Professor Derek Muller, for being so gracious with his time and turning this around on pretty fast.

 

As always, a recording of this program will be posted shortly on our YouTube channel and the FedSoc Forum podcast feed along with the Federalist Society website. As always, we do welcome listener feedback at info@fed-soc. And with that, thank you all very much for being with us today. We are adjourned.

 

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