Welcome to scot Discast, a project of the Federalist Society for Law and Public
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All expressions are those of the speaker. Hello, and welcome to scot Discast.
I'm your host, Kyle hammernus On, behalf of the Faculty division of
the Federalist Society. We are here today to discuss Trump versus Anderson, in
which is Supreme Court issued in nine zero decision on March fourth, twenty twenty
four. We are joined today by Professor Derek Muller. Derek is a professor
of law at Notre Dame Law School, where he teaches election law, civil
procedure, and evidence. His research focuses on the role of states in the
administration of federal elections, the constitutional contours and voting rights an election administration,
the limits of judicial power in the domain of elections, and the electoral College.
And with that, I'd like to turn things over to our guests to
discuss the overview of the case and the court's decision. Sure so, Trumphy
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 four to three decision by the Colorado Supreme Court, had held that Donald
Trump had engaged insurrection for purposes of Section three of the fourteenth Amendment. As
a result, it concluded he could not appear in the Republican primary ballot in
that state, kept him off it, but stayed the ruling. As the
decision was appealed to the United States Supreme Court, which had expedited review.
It took a little over three weeks for it to issue the decision. 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 revert 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. That's a percurium decision.
Although I shouldn't speculate, but it reads in some respects, like the voice
of Chief Justice Roberts, per curium a unanimous result that is nine to zero,
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 or such, Cavanaugh, and Barrett all agreed with sort of the reasoning
in the percurreum opinion. And then there was a concurring opinion jointly authored by
Justices so Domi Ar, Kagan, and Jackson, concurring in the judgment only,
but agreeing with sort of the heart of that part of the decision.
So I'm going to focus on that for a moment. It's part two B
of the procureum decision, and that part of the decision really focuses on sort
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
versus Thornton in nineteen ninety five 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's story and 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 three of the Fourteenth Amendment in the context of a presidential
election, there 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 five 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 one and Article two deal
with congressional elections, but it's not clear that implicitly within them is the later
power to come back and enforce Section three of the Fourteenth Amendment. By the
sort of structural provisions of the Constitution. This is a provision that's designed for
congressional enforcement for rational 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 qualify, 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, which seemed to burden
Congress and at very ends. Or there are a series of practical concerns that
one state's evidentiary law or when states procedural set up 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 in 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
two B of the Procureum opinion, joined in full by Justice Barrett, and
joined again in logic, if not in full by the concurring opinion by Justices
sot Of, my Ar, 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 two A of the opinion, and
this is where Justice Barrett peels off, along with the other concurring justices,
address to sort of a separate question, which is not whether or not states
have the power to enforce Section three of the Fourteenth Amendment. It's more a
question of who else and in what context has the power to enforce Section three
of the Fourteenth Amendment. And for that the Court turns to sort of the
way that Section three is set up. It speaks about how Congress has this
role now to enforce the provisions of Section three of the Fourteenth Amendment. Section
five 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 president including City of Bernie versus Flores, must
be congruent and proportional to remedy the concerns that are addressed by these provisions the
Constitution that when Congress steps in and enforces it provides this sort of holistic remedial
scheme. And when we look at the fact that we're dealing with this question
insurrection, and Justice cavanat oral argument did say, the word insurrection stands out
to him. It requires an ascertainment or it 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 as
a circuit Justice eighteen sixty nine said in a case called Griffin Case. In
Griffin's case has a lot of attention in some of the scholarly discourse. Where
a federal judge was sitting in Habeas one year after ratification of the Fourteenth Amendment,
which is ratified in eighteen sixty eight. So in eighteen sixty nine,
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 adjudicator issued
by a judge who was barred from holding office by section three 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 do you Some of the language the court here quotes from
precedings, 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, Justice is not in a position to make this adjudication in court.
So Part two A of the opinion really rides heavily on Congress's role here.
Congress's role the language has Congress or the Constitution empowers Congress, It enables Congress,
subject to judicial review, to pass appropriate legislation and Congress's Section five power
is critical when it comes to Section three. 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 procureum opinions is, 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 Vera writes separately to say,
I agree on the states lack the 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 sort
of my Rka again 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 core 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 three'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 and 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 three and prohibiting other actors from enforcing
Section three sort of. 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, you know, whether January sixth was an
insurrection, whether Donald Trump and Gain aged in an insurrection, whether or not
his speech or his conduct was protected, was not protected, whatever it is,
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
of 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 three of the fourteenth Amendment, so it doesn't seem to foreclose the
possibility that states exercising their power under Article two of the Constitution to exclude say
a twenty one year old from the ballot or a Nicaragua National from the ballot
might continue to be able to do so. Instead, the opinion looks much
more at Section three 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 state 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 presdential qualifications disputes, election
disputes, ballid access disputes. If we're just dealing with Section three of the
fourteenth Amendment. It also seems that it would appear to foreclose challenges to 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 Reformact on January sixth, twenty twenty five by members of Congress would be
inappropriate, or that challenges to agency activity under section seven oh six 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.
And it's very hard to identify exactly what the court is doing when it is.
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 seating its
own members versus enacting legislation? What things by as the concurring opinion points out
general federal statutes, you know, such as the Administrative Procedures Act or the
Electoral Count Reformat 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 three to 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 A,
Part two 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 mean, it's 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. Some members of Congress are
introducing legislation to enforce Section three 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 this Congress, but at
least the understanding that this is a congressional responsibility in a case like this,
And again I think now it's just left of the political process. There'll be
major questions about presidential immunity coming up in the weeks ahead, as the Supreme
Court here is that case 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 on 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 balid access provisions.
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