Why Trump Should Not Be Removed, v3



I’ve written a couple of short pieces about the move to invoke Section 3 of the 14th Amendment to block Donald Trump from the ballot. The gist of those two swipes was this: That while electing Donald Trump to a second term of office would be catastrophic, removing him from the ballot based on a forgotten snippet of the 14th Amendment would be catastrophic as well.

My first swipe grounded that argument in the view that Trump’s actual intent on January 6 could not qualify as “insurrection or rebellion.” His aim, I believe, was to get Congress to send the decision back to the states (bracketing the obvious point that Congress has no such power), not to direct the “terrifying and stupid” “muppet reboot of the Vietnam War” as Lucy Liu so brilliantly described it. Yes, he failed in his plan. Is it any surprise that Donald Trump failed in his plan? (List of Trump’s failures)

My second swipe aimed to dislodge the view that it would have been “absurd” to imagine the framers of that amendment excluding the President while including everyone else on their list. (E.g., Baude and Paulsen’s great article:“the seeming absurdity of the prospect of exclusion of the offices of President and Vice President from triggering the disqualification.”) Whether they meant to or not, my point was that nothing in the logic of Section 3 compels the conclusion that it must cover the President. And indeed, there might be much wisdom in excluding the President and Vice President (assuming Electors both have discretion and are insurrection-free).

Yet as I read the many responses to the arguments of many that the Court should not exclude Trump, a basic point about constitutional interpretation is missing.

Too many approach the Constitution, imagining that the only question is what the text in some abstract sense “means.” Those lawyers demand fidelity to that meaning, and understandably so.

But as I’ve long argued — and argued at length in my book, Fidelity and Constraint (Oxford 2019)—the story of our Court has never been one of fidelity to meaning alone. Always, and from the Left and Right, there has been a focus on fidelity to role as well. Indeed, from the very beginning, the Court has understood the Constitution’s meaning — for it, at least—as a function of its own role. Or put differently, the institutional capacity of the Court has constrained the range of permissible meanings of the Constitution, at least as they are available to the Court.

The easiest example of this dynamic is McCulloch v. Maryland (1819). There’s tons in that extraordinary opinion, but the bit I want to focus here is Chief Justice Marshall’s interpretation of the word “necessary” from the Necessary and Proper Clause. We all have a sense of the constraining sense of the word “necessary.” “You can do it, but only if it’s necessary.” Yet it was clear to Marshall that if the Court were burdened with policing whether the means chosen by Congress in any particular law were indeed truly “necessary,” the Court would be drawn into a wholly unadministrable jurisdiction. How could a court weigh how necessary something must be to be “necessary” in a constitutional sense? What tools would it use? What evidence? It is clear to anyone focused on that institutional question that it was beyond the capacity of courts to determine reliably or predictably or — and critically — apolitically. So rather than assign the court such an impossible task, Marshall read the word “necessary” in a far looser sense: to mean, as he put it, “that one thing is convenient, or useful, or essential to another.” The institutional role — judicially policing the boundary of “necessary”—thus helped determine the constitutional meaning.

Critically, that doesn’t mean that the word must have the same meaning for Congress. A member of Congress could well believe a law unconstitutional — and therefore oppose it — because she does not believe it is “necessary,” in the sense that she understands Congress should apply that constraint. Thus, for Congress, the term could be narrower than the term is for the Court — because the “meaning” of the term must, necessarily, depend upon the capacity of the institution interpreting the term. As Congress has a greater capacity to police “necessary” than the Court, Congress could well determine to limit the reach of “necessary” laws, even though the Court would not impose the same limit.

If that same institutional approach is used to interpret Section 3 of the 14th Amendment, it clearly compels the conclusion that the Court, on its own, cannot apply Section 3 to exclude Trump from the ballot. There’s a good argument that Congress would have the power to establish a procedure by which any of the targeted federal officers or representatives could be excluded because of engaging in “insurrection or rebellion.” But without Congress acting, Section 3 does not reach the President.

Fidelity to Meaning: Why Section 3 lies dormant for federal officers/representatives until Congress acts

There’s a large and growing movement among scholars of Reconstruction that the Framers of the Reconstruction Amendments meant those Amendments to be enforced first by Congress and only second by the Courts. Consider the 14th Amendment in particular. Section 5 states as follows:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This is only the third time the word “enforce” is used in the Constitution. The first time was Section 2 of the 13th Amendment :

Congress shall have power to enforce this article by appropriate legislation.

The second time was Section 1 of the 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

These three usages confirm a pretty common understanding of the primary enforcer of the rules of the Reconstruction Amendments — Congress. Section 1 of the 14th suggests the distinction between law-making and law-enforcing — neither may a state use to “abridge the privileges or immunities of citizens of the United States.” But Sections 2 of the 13th and 5 of the 14th locate that enforcement power in Congress, and both specify the means by which that enforcement power gets exercised — “by appropriate legislation.”

The Reconstruction Congresses acted on that understanding to fill out the extraordinary reform that Reconstruction was to effect. The Civil Rights Act of 1866 was a profound enforcement of the ideals of the 13th Amendment, establishing equality in a wide range of public and private life. The Enforcement Acts of 1870 and 1871 “enforced” the equality and voting provisions of the 14th and 15th Amendments. These acts suggest the idea that no one in 1865, 1868, or 1870 was imagining courts as the primary “enforcers” of the Reconstruction Amendments. Courts, no doubt, were to follow the rules written in the texts of the laws. Those laws, however, were to be written by Congress.

Yet from the very start, lawyers begged courts to act beyond the acts of Congress alone. Challengers in one of the most important early cases interpreting the 14th Amendment, The Slaughter-House Cases (1873), asked the Court to apply the restrictions of Section 1 against a state without direction or specific legislation from Congress. The Court did not deny its own jurisdiction, but it did deny the plaintiffs a remedy. The Court was not, on its own at least, going to discover unenumerated rights in the 14th Amendment that might constrain the regulatory power of the states.

Of course, the Court soon lost any sense of self-restraint. At least with respect to the provisions of the 14th Amendment constraining states, the Court increasingly assumed for itself the power to determine the scope of those restrictions. That habit quickly became addictive; Lochner v. New York (1905) signaled the addiction had gotten out of hand. But Lochner notwithstanding, we have long understood the Court to have a role “enforcing” the 14th Amendment, even without Congress’s expressly determining the substance of that role.

Yet equally without doubt, the history of the 14th Amendment has also included profound reticence by the Court to step into interpretive quagmires, at least without congressional direction.

Section 2 of the 14th Amendment is the clearest example:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. (emphasis added)

Though much of the reason for this clause was removed by the 15th Amendment, no one ever genuinely believed that the 15th Amendment had achieved its purpose fully. So many have tried to invoke this language to get courts to reduce apportionment because of the many ways in which “the right to vote” is effectively “denied” to many “male[s]” (and females, too) in many states. (Franita Tolson has a powerful argument in this direction.) Yet no court has yet to accept this interpretive invitation — and for obvious reasons. The contours and complexity of such a determination — in what sense “denied” or “abridged”; how many before the provision kicks in; intentional or not, etc. — are obviously meet for Congress and not for a court. That truth has led courts to avoid relying upon Section 2 to constrain the states. If Section 2 is to have any force, it must be “enforce[d], by appropriate legislation” by Congress.

Sometimes, this refusal to rely upon Section 2 is explained by the “political question” doctrine. But that doctrine is just the other side to the analysis that I’m suggesting courts, or at least the Supreme Court, always engages: The meaning of the clause is not read to include “this clause is self-executing,” because making it self-executing would involve the courts in obviously unadministrable or political questions. Thus, rather than reading “self-executing” as an implied term of Section 2, the Court has read Section 5 to mean that any enforcement of Section 2 must come from Congress first. If Congress passed a law that forced a reduction in representation because a state gerrymandered, or because it imposed unequal voting burdens, or whatever, then there would be nothing inappropriate in courts enforcing those reductions. But without Congress acting first, the meaning of Section 2 does not include the instruction to courts: enforce this as you see fit.

The same analysis should apply to Section 3. The first question a court must answer is whether an implied term — this clause is self-executing—should be read into that clause. And for the same reason no such term is implied with Section 2, no such term should be implied with Section 3. Because obviously, the scope and meaning of “insurrection or rebellion” is complex and underdetermined. And even more obviously, the procedures through which the facts necessary to establish that someone has engaged in “insurrection or rebellion” are complex and underdetermined. Against the background of the presumptions of 1866 (namely, that Congress was the prime enforcer), the express text of Section 5 (“The Congress shall have power to enforce, by appropriate legislation…”), and the inherently undetermined character of the words “insurrection or rebellion,” it is wrong to read Section 3 to mean “and even without direction by Congress, courts, including state courts, are invited to decide whether Trump or Hawley or anyone else is excluded by this Clause.”

“But what about 18 USC 2383, which expressly punishes ‘insurrection’ and declares one convicted shall be incapable of holding ‘any office under the United States?’”

Exactly. In my view, §2383 is constitutional. It’s an exercise, in part, of §3 power. It is the way that Congress has described for declaring someone an “insurrectionist” and delivering the consequence of that determination upon them. It could declare other ways as well. But it did not declare the, or any, way that Colorado used. §3 is not self-executing; Colorado did not execute it in the way Congress declared.

This conclusion is resisted by the great Mark Graber (whose work on Reconstruction is among the very best of our generation), by FreeSpeechForPeople (whose lawyering in many contexts is among the best of our generation), and by the Colorado Supreme Court (a great court, no doubt, but I don’t have a parallel superlative). Graber and FreeSpeechForPeople point to many examples of the clause having effect during Reconstruction without an act of Congress. These support, they claim, the argument that Section 3 is “self-executing.”

But the examples plainly do not support the view that Section 3 is “self-executing” in the sense they mean, and the suggestion that the 14th Amendment is itself self-executing generally is overstated.

Start with the second point first: Graber writes “what commentary exists suggests that members of Congress assumed all provisions of the Fourteenth Amendment were self-executing.” Certainly, that statement is not true. No one thought Section 5 was “self-executing.” And Graber does not discuss Section 2, the apportionment of which has never been treated as “self-executing.” Instead, rather than imagining a single standard — “all provisions …were self-executing”—the history actually supports a more varied reading, again indexing the degree of potential “self-execution” on the nature and determinateness of the standard included in the clause. Section 5: not at all. Section 4: sure, in a contract action, but is the “validity of the public debt” clause really self-executing? Section 2: not. Section 1: over time, more and more. And Section 3? In my view, in the same category as Section 2: not.

Potentially the most important evidence against this position would have been contrary practice at the time the Amendment was adopted. And though Graber’s article suggests that practice supports the idea the provision was “self-executing” (“[s]tate courts in the absence of federal
legislation determined whether persons were disqualified from holding office because of their participation in the insurrection. Several potential officeholders were disqualified.”), in fact the evidence is all to the contrary. In every case cited, the disqualification followed not from a court disqualifying a candidate on its own, but from a court enforcing a statute that itself effected the disqualification.

FreeSpeechForPeople is very careful in limiting its own claim: it argues only that states don’t need federal law to enforce state disqualifications. That’s certainly true. But the question the Colorado case raises is not whether states can disqualify state candidates without Congress acting (they certainly can), but whether a state court can disqualify a federal candidate without any federal legislation to guide the process. As the proponents of “self-executing” power have offered no case in which a state court did that to a state candidate, their authority does little to support the idea that state courts would do that with federal candidates.

Fidelity to role: Why Section 3 should be read to lie dormant

As I’ve just described, there is always and inevitably a fidelity to role analysis in any reading of any constitutional text. But there is also a more pragmatic, institutional question about fidelity to role, distinct from meaning: What would it do to the Court to interpret the meaning of the clause as asked?

This question is unavoidably a question about how the Court’s actions will be understood by the public. And that question of public understanding has been a staple of Supreme Court jurisprudence from the very beginning. It was invoked by Chief Justice Roberts as a reason to avoid policing partisan gerrymandering: As the Chief Justice put it, if the court decides a case favoring one political party over the other, the “intelligent man on the street” will ask why. Lawyers may cite sophisticated social science, but the man on the street, according to Roberts, would say, “that’s a bunch of baloney.” Instead, the “intelligent man” will believe that the result “must be” because the court preferred one party over the other. And in the run of such cases, “the status and integrity of the decisions of this court,” Roberts insisted, would be seriously harmed.

It was also invoked in the Joint Opinion in Planned Parenthood v. Casey (1995) as a reason not to overturn Roe v. Wade (1972). As the Joint Opinion explained:

The Court’s power lies . . . in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands. (emphasis added)

And then later:

Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.

A naive view — naive in its failure to understand the complexity of building institutional authority — is repulsed by the suggestion that the Court decides cases on the basis of the public’s perception. But I submit that any understanding of our Court’s history that ignores this dimension of interpretation profoundly misunderstands how constitutions get and sustain meaning. It isn’t stupidity. It is ignorance. It is a failure to understand how our tradition has progressed.

From this perspective, it is obviously wrong for the Supreme Court to hold that Trump is excluded from the ballot. The clause does not mention the President. And yes, as Vik Amar has argued, that doesn’t mean it couldn’t properly be read to include the President. It only means that today, all the handwaving of law professors in the world won’t dislodge the sense that it is “yet another example” of “hoax” legal actions to disable President Trump. But even accepting it is properly read to include the President, the political (and social) consequences of judicially removing a leading candidate from the ballot obviously weigh into the calculation the Court must engage for determining whether to exercise jurisdiction to remove Trump from the ballot without enabling legislation. If it is not clear, if it would suggest to many (maybe 1/2 the nation) that the Court is acting not on the basis of “principled justification,” but politics, if the average “intelligent man on the street” would hear the proffered “principled justification” and say “that’s a bunch of baloney,” then the Court should not exercise its power to exclude him from the ballot — for its sake certainly, and possibly, for the Nation’s.

Note, I’m not arguing that the Court should not do it because it would not be popular. I am arguing it should do it because it would not be perceived to be judicial. If Alexandria Ocasio-Cortez had run for President in 2020, even if 90% of America supported her, it may well have been appropriate for the Court to affirm her removal from the ballot: The enforcement of the qualifications in Article II are not presumptively vested in Congress; and the qualification itself — is a 29-year-old “35 years old”?—is perfectly clear. The Court’s decision, however unpopular, would not be perceived as political. It would be unpopular (by hypothesis), but not wrong.

But the decision to remove Trump would have none of these characteristics. There is no clear line for applying “insurrection or rebellion”; there is no clear statement that it applies to the President; there is no popular longstanding understanding confirming its application; there is no clear procedure for determining the facts (if Colorado decides he engaged in insurrection, but Florida decides he did not, is the Court then to engage in fact-finding of its own? De novo?).

For these reasons, I remained convinced that though Donald Trump should not be elected President, neither should the Supreme Court affirm an order that he be removed from the ballot.

But whether you agree with that conclusion or not, please agree with at least this one: Whatever the Supreme Court does, if it is to preserve itself as an institution of justice, it needs to act unanimously. If it removes Trump 9–0, that would be a profound act, and done in a way to remove the suggestion that it is political. And if it reverses Colorado and declares Trump cannot be excluded from the ballot, that decision, too, should be 9–0. This is not the time for the egos of individual justices to muddy the perception of the Court’s decision. However the Court acts, it will be among the most important decisions it will have ever made. It needs to make that decision as one Court, whatever the individual views of individual justices might be.