Today the Supreme Court decided it Trump vs. Anderson. The majority, according to a per curiam opinion, makes four primary moves.
First, the Court agrees with Chief Justice Chase’s opinion The Griffin case (1869) that Congress must establish procedures to enforce Section 3:
It is therefore necessary, as Chief Justice Chase concluded and as the Colorado Supreme Court itself recognized, to “ascertain”.[] which particular individuals are embraced'” by the provision. App. a Pet. per Cert. 53a (citing The Griffin case, 11 F.Cas. 7, 26 (N. 5,815) (CC Va. 1869) (Chase, Circuit Justice)). Chase went on to explain that “[t]To carry out this assessment and guarantee effective results, more or less formal procedures, tests, decisions and application of decisions are essential.” ID., at 10pm.
Second, states have the reserved power to disqualify state officials, but states do not have the power to disqualify federal positions:
We conclude that states may exclude persons who hold or attempt to hold state office. But states do not have the power under the Constitution to enforce Section 3 with respect to federal offices, particularly the Presidency. . . . Although the Fourteenth Amendment limits state power, nothing in it clearly deprives states of this traditional authority. And since the ratification of the Fourteenth Amendment, states have used this authority to disqualify state officials in accordance with state statutes. See, for example, Worthy v. Barrett63 NC 199, 200, 204 (1869) (elected county sheriff); State ex rel. Sandlin vs. Watkins, 21 La. Ann. 631, 631–633 (1869) (state judge). That power over governance, however, does not extend to federal officials and nominees.
Third, legislation to implement Section 3 must meet the “consistency and proportionality” test. City of Boerne vs. Flores. We believe the Court is suggesting that the Electoral Count Reform Act does not meet this test. And the Court suggested that Section 2383 would be valid implementing legislation.
Any congressional legislation implementing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruity and proportionality” between preventing or remedying such conduct “and the means adopted thereto.” City of Boerne, 521 US, at 520. Neither we nor respondents are aware of any other congressional legislation to enforce Section 3. See Tr. of the Arg. Oral 123.
Fourth, below Anderson vs Celebrezzethere are distinct interests in having a uniform system for electing the president.
Finally, state enforcement of Section 3 against the Presidency would raise more concerns. “[I]In the context of a presidential election, state-imposed restrictions imply a particularly important national interest.” Anderson vs Celebrezze, 460 US 780, 794–795 (1983) (footnote omitted). But state-by-state resolution of the question of whether Section 3 excludes a particular presidential candidate would be unlikely to produce a uniform answer consistent with the basic principle that “the President…represents[s] all the voters of the Nation.” ID., at 795 (italics mine). Conflicting state results involving the same candidate could result not only from differing views on the merits, but from variations in state law governing the processes necessary to make Section 3 disqualification decisions.
There is much more to say about this case. Here we offer some preliminary observations.
First, the Court agrees with Chief Justice Chase’s decision The Griffin case. Indeed, the Court likely amplifies Chase’s reasoning. From the beginning, we started with Chase’s opinion. We wrote about it in New York Times about Madison Cawthorn. It was the main topic of our article, Sweep and force. And it was the Roman numeral I in every amicus brief that we filed. All efforts by law professors, academics in other fields, and others to attack Chase and his credibility have failed. The most the Sotomayor-Kagan-Jackson opinion could muster to criticize Chase was to point out that Trump’s lawyer, Jonathan Mitchell, “distanced himself from fully embracing” The Griffin case. (Blackman addressed Mitchell’s discussion of Chase and The Griffin case Here.) Chase and his legal prowess were once again confirmed, as they have been on many occasions in the past.
Second, the Court agreed with our position that state positions stand differently from federal positions. In Sweep and forcewe supported him Worthy against Barrett AND Sandlin vs. Watkins can be explained as the application of Section 3 against state officials. Law professors flatly rejected this distinction. Indeed, Trump’s own lawyer has resisted this argument. Judge Barrett asked Mitchell, “Why don’t you hold that the Constitution of its own forces, that Section 3 of its own forces, preempts the ability of the State not necessarily, I believe, to enforce Section 3 against its own officials?” but against federal officers, as in a The case of Tarble In a way.” Mitchell replied, “there might even be a narrower argument. You are suggesting that there may be a barrier under the Constitution to a state legislating a Section 3 enforcement mechanism specifically for federal officials.” Judge Barrett responded incredulously, “Well, why don’t you make those arguments?” (Blackman he discussed it in conversation Here.) In fact, it was this argument that prevailed.
Third, none of the justices addressed the “office” and “officer” topics. Perhaps in several decades, when the documents are published, we will gain some insight into how this view arrived at its final form. Discussions of the “office” and “officer” language of the Constitution and Section 3 led to detailed questioning by Justices Jackson and Gorsuch during oral argument.
Fourth, the various opinions did not cite law review articles, amicus briefs, blog posts, or social media. But it was decided, after the briefing and after the oral discussion. In due course, we will be able to explore how so many, perhaps the majority of legal academics, have interpreted this case so wrongly.