Insurrection and Justiciability: Who Should Enforce Section 3?

I’ve previously discussed why the Colorado Supreme Court should rule that Donald Trump cannot appear on the presidential primary ballot. The Court should affirm a Colorado district court’s finding that former President Donald Trump “engag[ed] in insurrection” on January 6, 2021, and reverse the court’s conclusion that the President of the United States is not an “officer of the United States” or an “office, civil or military, under the United States.” My prior essay provides background on the substantive legal issues. I don’t intend to repeat the background, so if you are not well versed in Section 3, I recommend you read that essay first. In this essay, I want to discuss issues of “justiciability,” “political question” doctrine, and whether ordering Trump off of the ballot is within the power of the judiciary.

Because justiciability is at its heart about what government institution ought to enforce constitutional provisions (or other legal rights), I want to begin by looking at each of the institutions that might enforce Section 3 of the Fourteenth Amendment. Section 3 is the provision that makes people who have broken their oaths as office-holders to support the Constitution of the United States ineligible to hold future federal or state offices. Any questions of justiciability — of whether courts are the appropriate bodies to enforce Section 3 — require considering other possible forms of enforcement, and so I’ll begin by looking at the options before turning to a more traditional doctrinal analysis. The plausible institutions that could enforce Section 3 are the courts, Congress, the voters at large, and the electoral college. I will consider each in turn.

Enforcing Section 3 Fits Courts’ Core Competencies and Roles

In our legal system, the paradigmatic role of courts is to consider claims that someone has committed a legal wrong and that this can be redressed by a court order or the award of damages. That’s what courts do in criminal cases and in many tort and other civil cases. If we define “committed a legal wrong” broadly enough and allow for occasional examples of prospective relief, virtually everything that courts do falls under this role, with some minor exceptions like handling adoptions and naturalizing citizens. The central task of courts is to find facts about events that have occurred in the past, by collecting and weighing evidence in an adversarial process, determine what the law is with regards to the claims at issue, and apply the law to the facts.

In this regard, applying Section 3 is bog standard court activity. In order to apply Section 3, a court needs to resolve some (not particularly difficult) legal questions — what sorts of actions constitute “engaging in insurrection”? is the President of the United States an officer of the United States covered by Section 3? — and make factual findings about whether a prospective office-holder engaged in insurrection. Nothing about enforcing Section 3 requires a court to exercise unusual judgment about policy preferences or delve into an understanding of what the people want their elected officials to do. Rather, just like in a criminal case or civil litigation over a tort, a court asked to apply Section 3 needs to analyze what the words of Section 3 mean and then make factual findings about specific past events. Judge Wallace’s careful and thoughtful opinion, written after a full trial with fact witnesses testifying and other forms of evidence entered into a record and then weighed by the judge, demonstrates the normality of resolving a Section 3 claim. It requires precisely the same sort of decision-making that judges engage in every day.

Indeed, while Section 3 has only been applied a handful of times, one of the main ways that it has been applied has been by state courts resolving claims that a prospective or current office-holder has been rendered ineligible by Section 3. In New Mexico ex rel White v. Griffin, a New Mexico court removed a local official from office because he had engaged in insurrection on January 6. The court’s decision became final when the New Mexico Supreme Court rejected Griffin’s appeal, albeit on procedural grounds. The trial court judge cited to several cases from 1869 in which state courts applied Section 3 to remove from office or from the ballot former Confederates. While those cases are old, they remain good law and represent the practice at the time immediately after Section 3 was adopted. Indeed, but for the massive political consequences of considering whether a major candidate for President of the United States is eligible to run, deciding Section 3 cases like this through ordinary legal proceedings in court would be completely uncontroversial and run of the mill.

The office of President of the United States is a special office. Unlike any other office in the United States, it is elected through a process that crosses state lines. It mobilizes massive public attention, and turn-out is generally substantially higher for presidential elections than for any other elections. And the significance and power of the office of the President of the United States is unequaled — indeed, the President of the United States is almost certainly the single most powerful person on Earth. It thus makes sense to be hesitant about whether a court should involve itself in the election process.

Also, a decision on the eligibility of a major presidential candidate would inevitably receive harsh criticism because of its partisan effect. Courts and judges generally want to be viewed as nonpartisan and apolitical. Although I believe it is obvious that judges are, in fact, political actors — although a special variety of political actors whose decision-making is not driven purely by political — and that we should acknowledge that as we think about the law and legal institutions, the judges themselves want to avoid that perception and believe that it would threaten the courts’ legitimacy. And when courts do become entangled in major political disputes, it can seriously damage the reputation of the courts. Many people would cite Bush v. Gore as an example of a partisan court improperly injecting itself into a political dispute to choose the President, and respect for the Supreme Court has suffered as a result.

These considerations make it nonobvious that courts should decide Section 3 cases, at least those involving the Presidency, despite the normality of the judicial process in applying Section 3 to lesser offices. There are also some complexities involving state courts versus federal courts that I will return to later. Nonetheless, the basic point I wish to make right now is that resolving Section 3 claims requires courts to do nothing other than the exact sorts of judicial decision-making they do in every other case. If Section 3 is nonjusticiable with regard to the Presidency, that has to be about the unique aspects of that office, not Section 3 in general.

Congress Can Enforce Section 3, But Section 3’s Structure Suggests Nonexclusive Authority

Congress uncontroversially has the power to legislate how to enforce Section 3 — Section 5 of the Fourteenth Amendment says that in so many words. Congress can also, of course, use the impeachment power to prevent federal officeholders from continuing to hold office, but very strange consequences would ensue if that were the only way to enforce Section 3. After the fact examination of specific individuals’ actions and determination of whether sanctions are appropriate is generally not something that Congress is authorized to do or institutionally well suited to do. Also, because Congress can restore eligibility under Section 3, but only by a super-majority vote, requiring even a majority vote of Congress to enforce Section 3 creates an illogical allocation of power.

First, Congress clearly has the power to adopt legislation enforcing Section 3 because of the enforcement clause in Section 5. If Congress wanted to clearly define a means for the federal courts or an administrative agency to enforce Section 3, it could do so. Similarly, clear Congressional action could pre-empt the ability of other bodies such as state courts to enforce Section 3. A long history of court doctrines uphold the ability of Congress, when acting within its authority, to displace any contrary laws. Anything else would seriously undermine the Supremacy Clause, which states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI. At the same time, the mere fact that Congress has the power to legislate on a topic does not inherently pre-empt the ability of any other body of state or federal government to act on that same topic; if it did, the Supremacy Clause’s statement that the Constitution is the supreme law of the land and binds all judges in the United States would be seriously undercut.

Congress can also clearly, under some circumstances, enforce Section 3 through either the impeachment power or as the judge of elections of members of Congress. The House of Representatives impeached Trump for inciting insurrection after January 6, and while a majority of the Senate voted to convict him, the votes to convict did not meet the two-thirds requirement established by the Constitution. Had the Senate convicted Trump, they could have removed his eligibility to hold offices of “honor, trust, or profit” under the United States. In a sense, that would have been a means to enforce Section 3. The House of Representatives has also refused to seat a member who had been convicted of an espionage offense, citing Section 3 and the provision that each house of Congress “shall be the Judge of the Elections, Returns and Qualifications of its own Members.” U.S. Const. Art I. However, that power to judge the elections of its own members is unique to Congressional elections. No similar authority exists for Congress to serve as the judge of presidential elections, or of appointments of lesser federal officers who do not require Senate confirmation, or of state officials (who are also not within the scope of the impeachment power, although they are covered by Section 3’s text).

It would be very strange, however, to assert that the impeachment power or the power to judge the elections of their own members are the primary or only ways to enforce Section 3. First, it would leave many offices that explicitly are covered by Section 3 uncovered by the enforcement mechanism — state officials could not be impeached and are not members of Congress, but are nonetheless subject to Section 3’s strictures. Second, it would render the requirements for restoring eligibility almost comical. Congress has the sole power to remove ineligibility under Section 3, and then only by a two-thirds vote of each house. That textual requirement, by setting a super-majority requirement to restore eligibility, enables any more than one-third of either house of Congress to prevent someone covered by Section 3 from again taking office. But if blocking eligibility required an impeachment proceeding — requiring a majority vote in the House and a two-thirds vote in the Senate — it would set up a perverse situation where Section 3 creates an extremely high bar to restore political rights but at the same time makes it exceedingly difficult to enforce Section 3 in the first place. The two-thirds requirement to remove Section 3’s effects suggests that some other process, without the requirement of a largely united Congress acting together, is sufficient to enforce Section 3.

Indeed, a majority of both houses of Congress voted to find that Trump had incited insurrection on January 6. While insufficient to convict him in an impeachment trial, that nonetheless suggests the opinions of Congress as an institution about whether Trump would be covered by Section 3. I do not think it would be appropriate to invent a new simple majority standard in Congress to enforce Section 3, and even if it were, votes cast in an impeachment hearing on a vote that was going to result in acquittal are not exactly identical to a majority vote to apply Section 3. Perhaps some Republicans would have voted differently if their votes were dispositive, although I doubt it. Nonetheless, relying on Congress as the sole means to enforce Section 3 leads to the bizarre conclusion that strong evidence suggests that a majority of the Congress of 2021 believed that Trump engaged in insurrection after taking the Presidential oath of office, that it would take a two-thirds majority of both houses to restore his eligibility under Section 3, and yet that because fewer than two-thirds of the Senators voted to convict, he remains eligible anyway. Whenever possible, we should interpret Constitutional provisions to avoid nonsensical results like that.

In other words, Section 3’s own text suggests that after someone has broken their oath and engaged in insurrection, its ban on office holding has the presumption of regularity and requires exceptional action to restore eligibility. Requiring Congress to use the impeachment power or otherwise take exceptional action would turn that design on its head.

Finally, retrospective examination by Congress of the conduct of specific individuals and the consequences of their conduct is heavily restricted by the Constitutional design. The standard way in which the British Parliament might make such a decision at the time of the framing was through bills of attainder (or their non-capital equivalent, bills of pains and penalties). Congress is of course forbidden from enacting any bills of attainder, based on the understanding that Congress’s judgments are entirely political and could be tyrannical when used to apply penalties to an unpopular individual or group. If Congress were to conclude that someone’s actions needed to be punished and pass a new criminal law criminalizing that conduct, it also cannot be applied retrospectively — the Constitution forbids any ex post facto in the same clause as the prohibition on bills of attainder. U.S. Const. Art. I, Sec. 9. Indeed, the only way that Congress can ordinarily punish a person for prior misconduct is through the impeachment power, and that is carefully limited in its scope and effects. While enforcement of Section 3 is not restricted by those provisions — Section 3 itself was ex post facto legislation, but because it is part of the Constitution itself is not invalid, and Congressional enforcement of Section 3 is directly authorized by Section 5 — they still establish a strong presumption against Congress serving as a finder of facts and enforcer of the laws. Impeachment is a strange exception, balancing the inherently political decision of whether to remove an office-holder for misconduct against limitations of punishment.

The basic structure of the Constitution provides that Congress is not the correct body to examine individual’s liability for prior actions. Congressional action is inherently purely political, in a way that far outstrips the attenuated political nature of courts. Congressional proceedings have neither the same procedural safeguards nor the same experience with and carefully developed expertise in fact-finding in specific cases that court proceedings have. Relying on Congress as the sole or even primary body to handle Section 3 creates illogically contradictory numeric requirements while asking Congress to perform a task that it is ill-suited for and inexperienced at. Without extremely clear textual evidence, we should avoid reaching such a conclusion.

Some people also suggest that Section 3 should be enforced by Congress at the time of the counting of the electoral votes. This suggestion is not merely wrong but creates a huge peril. First, there is simply no provision at all in the Constitution for Congress to vote on whether a presidential candidate is qualified. It would need to be invented out of the whole cloth. Second, without any constitutional guidance on how such a vote would work, no standard even exists for what sort of vote would be necessary. Majority vote in each house? Majority vote in each house plus the President’s signature, like for an ordinary bill? Majority vote by the Senate alone, by analogy to advice-and-consent appointments? Anything over a third of either house, because a two-thirds majority of both is required to remove ineligibility? Third, Congress acting at that point (and presumably installing the Vice-President-Elect as President, unless the Vice-President-Elect was also ineligible…) would be profoundly anti-democratic. The voters who voted for an ineligible candidate in both the primaries and the general election would have their votes converted magically to a different candidate, who as a practical matter may have never received a single vote to be President but was hand-picked by a candidate who was ineligible to serve. Finally, it would run the risk of triggering a mass uprising — and with good reason. If a candidate has actually won the presidential election, for Congress to step in and remove them without using the impeachment process would look and feel like a legislative coup. It would be hard to blame people for thinking that the person who won the election was actually the President, and Congress engaged in an illegitimate insurrection of its own. That would invite a new January 6, but one where people were actually responding to Congress appearing to steal an election.

The Voters as a Whole Cannot Enforce Qualifications

A third possibility would be to rely on the voters as a whole to enforce Section 3. Appeals to rely on the democratic process focus on that possible enforcement mechanism. Who better than the citizens of the United States as a body, acting through an election, to determine whether someone should be eligible to serve as President? Wouldn’t that be consistent with our values as a democracy?

While initially appealing, this option is actually incoherent. The purpose of qualifications for office — whether the restriction of a President to two terms, the age requirements for Representative, Senator, and President, or Section 3 of the Fourteenth Amendment — is purely to restrict democratic choice. In this regard, the Constitution serves as a pre-commitment mechanism, whereby the people as sovereign say, “even though, in the heat of the moment, we may want to do X, we are tying our hands now.” If we rely on the people to enforce any qualification for office, we convert that qualification from a mandatory restriction on who can serve into a suggestion. The Constitution doesn’t read “We should generally not elect someone under thirty-five to be President, because they’re likely to be unqualified and acting as a proxy for a powerful demagogic parent.” It says, no person shall “be eligible to that Office who shall not have attained to the Age of thirty five Years.” If we rely on the voters in the electorate to enforce a qualification, it becomes nothing more than a suggestion, with its mandatory force completely removed.

Setting aside the issue of the Presidency for the moment, interpreting the people as the means to enforce Section 3 for other offices would also be nonsensical. The Fourteenth Amendment was adopted in response to a regionally based Civil War in which numerous states rose up against the United States. The core purpose of Section 3 was to ensure that, regardless of local popularity or support, those who had broken their oaths to support the Constitution by joining with the Confederate insurrection would not again hold office. The drafters of the Fourteenth Amendment were deeply aware that Jefferson Davis might remain popular among the residents of Mississippi (at least, among the white residents) and that many people in Virginia admired Robert E. Lee. The purpose of Section 3 was precisely to preclude those people from electing Davis or Lee or their fellow oathbreakers to hold offices unless a supermajority of Congress restored their eligibility. Relying on the voting decisions of the people of Mississippi or Virginia to enforce Section 3 in the aftermath of the Civil War would have been to render the entire section a dead letter. Surely, at least for every office other than the Presidency, a different enforcement mechanism must have been intended. In light of that, concluding that Section 3 silently sets up the voters at large as the only enforcement mechanism with regard to presidential elections requires mentally rewriting the whole section.

The Electoral College Is Ill-Suited to Enforce Section 3

With regard to presidential elections, it would also be possible to assert that the Electoral College ought to be the body to enforce Section 3. Congress can enforce Section 3 with regard to elections of its own members, although I have already argued that that remedy should not be understood as the exclusive remedy. Could the Electoral College play a similar role?

In order to evaluate this, we need to begin with the fact that the Electoral College is fundamentally a vote-counting mechanism, not an actual organ of government. By the time the Fourteenth Amendment was adopted, electors had long been selected (as they continue to be) based on their expected reliability as votes for the candidate of their party. Furthermore, the Electoral College never meets as a body and never deliberates. It only casts ballots in the several states that are then aggregated in Congress. To expect the Electoral College to consider qualifications is to fundamentally misunderstand its role in the election process.

Moreover, this poses the same problems as relying on the voters as a whole, only even worse. It leaves enforcement of qualifications to a body that consists entirely of people who have already decided who they support. If that is the mechanism for enforcing qualifications, they hardly even remain suggestions, let alone mandatory requirements. Even with regard to the Presidency, the Electoral College cannot sensibly be the enforcement mechanism for Section 3.

Nothing About the Doctrines of Nonjusticiability and Political Questions Precludes Courts from Enforcing Section 3

As I hope I have made clear, using courts to enforce Section 3 requires nothing more than standard judicial decision-making. The responsibility of deciding whether a major candidate can stand for election as President is terrifying and requires wielding awesome power. At the same time, we literally entrust judges with authority over whether defendants will live or die, over whether to uphold the Sackler’s settlement after something like 500,000 Americans have died from opioid overdoses with more than 100 more dying each day, over the issue of whether a minor who was raped can get an abortion, and over many other matters of life and death. Judges should act with a solemn awareness of the awesome magnitude of their power, but they cannot avoid the duty to wield it well. And while the effects of a decision about eligibility of a major presidential candidate under Section 3 are enormous, the process of interpreting and applying Section 3 looks exactly like the sort of decision-making that judges do every day.

The doctrines of justiciability and political questions are ideas that there are some areas where the standards for judgment are too amorphous and responsibility for a type of judgment is too clearly committed to a different branch of government for the courts to intervene. They essentially form part of the federal constitutional law of separation of powers, where the courts decide that some issues should be resolved by Congress, by the executive branch, or by an interplay between Congress and the executive branch without the courts’ involvement. So, for example, the Supreme Court has held that resolving conflicts over the scope of the President’s authority to use military force as commander-in-chief and Congress’s sole power to declare war are something for the political branches to sort out among themselves. Congress has many tools to limit a President who seeks to fight a war without Congressional authorization, from budgetary power to the Senate’s power over confirmation of appointments to passing specific statutory limits to, in extreme cases, the impeachment power. And the President needs some ability to respond quickly and decisively in a crisis without waiting for Congressional action. Courts view that as an area where their involvement would go beyond their expertise and cause more problems than it solves while dealing with areas uniquely in the Presidential and Congressional grants of authority.

Another example is areas where allowing the courts to rule on a question would require nearly unfettered judgment on policy questions better suited to political resolution. A classic example here would be the provision that the “United States shall guarantee to every State … a Republican Form of Government.” U.S. Const. Art. IV, Sec. 4. The Supreme Court has held that the Republican Form of Government Clause is a nonjusticiable political question, to be enforced only by Congressional action (if at all). While I (and many others) disagree with that conclusion, the Court based its reasoning on the difficulty in constructing enforceable standards that courts could fairly and consistently apply in this area of law.

In general, issues are nonjusticiable if they would require courts to make policy judgments and handle competing, equally valid political positions that would require them to step beyond an ordinary judicial role and take on a legislative character. Courts also look to whether an issue is uniquely entrusted to one of the other branches by the Constitution. The fact that a decision has partisan overtones, or would affect a political outcome, does not inherently make an issue a political question. After all, in Bush v. Gore, the Supreme Court determined the result of a presidential election. But if an area requires too much of the sort of political judgment and weighing of countervailing interests that Congress does, and not enough of the sort of judicial decision-making that courts do, courts may hold that the area is nonjusticiable.

Justiciability is a murky area in which individual justice’s understandings of what is and is not too political and what is and is not sufficiently manageable by courts carries more significance than perhaps it ought. Nonetheless, except for the magnitude of the decision, nothing about enforcing Section 3 in a presidential election actually implicates the concerns of justiciability. The task of applying the language of the section and finding facts about the conduct of a would-be candidate is in the heartland of judicial competence. Yes, Section 5 grants enforcement power to Congress. But to conclude that any grant of Congressional legislative power implies that something is entrusted solely to Congress and not the courts would swallow nearly the whole of the Constitution. Even when examining nearly adjacent clauses, the Supreme Court has held that it, not Congress, has the ultimate responsibility for determining the scope of the rest of the Fourteenth Amendment. If Section 3 is a nonjusticiable question because of Section 5, why isn’t the validity of affirmative action, the constitutionality of the Violence Against Women Act, or any of the numerous other areas touched on by the Fourteenth Amendment also nonjusticiable?

Even if the United States Supreme Court thought that Section 3 felt like a nonjusticiable political question, using that to prevent the Colorado state courts from applying Section 3 would raise enormous conceptual problems. Nonjusticiability is fundamentally a federal court doctrine, about the role of Article III courts in the federal government. Article III courts are courts of limited jurisdiction — they can only handle cases that the Constitution says that they can handle, subject to additional limitations by statute. In that regard, they are fundamentally different from state courts. State courts generally (and the Colorado state courts in particular) have a court of general jurisdiction — a court that can hear any cases on any matter, except for specific carve outs. Applying federal jurisprudence about the limited role of federal courts and the separation of powers within the federal government to limit state court actions applying the commands of the Constitution twists the doctrine beyond recognition, and undermines the Supremacy Clause’s explicit statement that state court judges are bound by the Constitution. In order to conclude that federal concepts of nonjusticiability apply to Section 3, the courts would really have to conclude that Section 3’s reference to Congress preempts state action as infringing Congress’s plenary authority over the area, even in the absence of Congressional action. Inventing a new concept of the dormant Section 3 clause, by analogy to the dormant Commerce Clause that pre-empts some state regulation of interstate commerce, would be a truly remarkable judicial innovation.

Also, consider again the idea that political questions apply to areas that are textually committed as the responsibility of a specific other branch. At first glance, it might appear that Section 3’s provision that Congress can remove its disqualification by a two-thirds majority as entrusting Section 3 specifically to Congress. However, that conclusion isn’t accurate — removing disqualification is uniquely entrusted to Congress, but Section 3 says nothing about the process by which it is determined whether a candidate is disqualified in the first place. If we understand the political question doctrine as about separation of powers between the federal courts and Congress, then perhaps the United States Supreme Court should view itself as unable to review Section 3 decisions of state courts. After all, the state courts aren’t limited by the same jurisdictional rules as federal courts are, and if a state court were to improperly conclude that a candidate is ineligible, there’s a clear Constitutional process, uniquely entrusted to Congress, by which that judgment can be reversed.

As a practical matter, I don’t think for a moment that the United States Supreme Court would hold that it can’t rule on a presidential candidate’s eligibility to appear on a ballot but state courts can. I also don’t think that would be a wise idea; the reason that the Supreme Court has appellate jurisdiction over decisions by state courts of last resort that depend on federal questions is to ensure uniformity nation-wide about the meaning of federal law, including the U.S. Constitution. But invoking a malleable and amorphous doctrine like nonjusticiability to quash state court rulings on Section 3 would not be deferring to the allocation of authority over these questions in the Fourteenth Amendment — it would be reversing the presumption that the people covered by Section 3 are ineligible unless a super-majority of Congress acts and turning it into a requirement that Congress pass a bill of attainder or impeach and convict to enforce Section 3.

Conclusion

I do not know how the courts will handle Section 3 as applied to presidential candidates. We’ll find out more tomorrow (Dec. 6), when the Colorado Supreme Court considers the matter, and then yet more when they issue their decision and the Supreme Court considers whether to grant cert. The district court engaged in weird substantive contortions, adopting bizarre interpretations of “office, civil or military, under the United States” and similar phrases to avoid the obvious conclusion that Section 3 disqualifies Donald Trump while acknowledging the overwhelming factual evidence that Trump engaged in insurrection. Appellate courts may do the same, or they may twist and misanalyze justiciability to avoid answering questions when they fear the answer they know to be correct. Or they may step up and do their duty to the Constitution, applying its language fairly and neutrally to anyone without malice or favor, regardless of how popular they may be or what prior office they may have held and might again without court action.