WEBVTT

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Welcome to scot Discast, a project
of the Federalist Society for Law and Public

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policy studies. Our contributors join us
from around the country to bring you expert

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commentary on US Supreme Court cases as
they are argued and the decisions are issued.

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The Federalist Society takes no position on
particular legal or public policy issues.

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All expressions are those of the speaker. Hello, and welcome to scot Discast.

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I'm your host, Kyle hammernus On, behalf of the Faculty division of

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the Federalist Society. We are here
today to discuss Trump versus Anderson, in

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which is Supreme Court issued in nine
zero decision on March fourth, twenty twenty

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four. We are joined today by
Professor Derek Muller. Derek is a professor

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of law at Notre Dame Law School, where he teaches election law, civil

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procedure, and evidence. His research
focuses on the role of states in the

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administration of federal elections, the constitutional
contours and voting rights an election administration,

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the limits of judicial power in the
domain of elections, and the electoral College.

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And with that, I'd like to
turn things over to our guests to

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discuss the overview of the case and
the court's decision. Sure so, Trumphy

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Anderson, I've been on enough of
these calls and related calls. I think

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you might be familiar with it.
Right. The State of Colorado, in

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a four to three decision by the
Colorado Supreme Court, had held that Donald

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Trump had engaged insurrection for purposes of
Section three of the fourteenth Amendment. As

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a result, it concluded he could
not appear in the Republican primary ballot in

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that state, kept him off it, but stayed the ruling. As the

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decision was appealed to the United States
Supreme Court, which had expedited review.

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It took a little over three weeks
for it to issue the decision. So

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now we have that long awaited decision. Unsurprising to most, I think is

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after oral argument, the sense was
that at least eight justices, if not

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all nine, were inclined to revert
the Colorado Supreme Court on some theory that

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the State of Colorado or a single
state didn't have this power to exclude ineligible

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candidates from the ballot, didn't have
the power to enforce this for varying structural

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or practical reasons. There's going to
be a question from the court about how

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it got there. So the decision
came out. That's a percurium decision.

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Although I shouldn't speculate, but it
reads in some respects, like the voice

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of Chief Justice Roberts, per curium
a unanimous result that is nine to zero,

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essentially saying that Colorado lacks this power, but some sharper elbows on the

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path there, the path not only
to that one holding, but whether other

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holdings should be reached. So six
Justices, Chief Justice Roberts, Justices Thomas

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Alito or such, Cavanaugh, and
Barrett all agreed with sort of the reasoning

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in the percurreum opinion. And then
there was a concurring opinion jointly authored by

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Justices so Domi Ar, Kagan,
and Jackson, concurring in the judgment only,

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but agreeing with sort of the heart
of that part of the decision.

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So I'm going to focus on that
for a moment. It's part two B

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of the procureum decision, and that
part of the decision really focuses on sort

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this overall structural take of the Constitution
actually from the text, structure, context,

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and so on. And really it
begins with a quotation from term limits

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versus Thornton in nineteen ninety five case
saying that states had no power to add

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term limits or additional qualifications for congressional
candidates. And from there it cites that

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case, which had in turn cited
the Great Justice Joseph's story and his commentaries

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in the Constitution to say that if
states are exercising power in federal elections,

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that power has to come from some
source in the Constitution. So if you

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are looking at Section three of the
Fourteenth Amendment in the context of a presidential

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election, there is the state power, Well, it's certainly not going to

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be found in the Fourteenth Amendment,
which is a constraint on state power.

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Section five gives Congress the power to
enforce it. It gives no power to

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the states. As you run through
the rest of the Constitution, you can't

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find other provisions of the Constitution empowering
states. Article one and Article two deal

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with congressional elections, but it's not
clear that implicitly within them is the later

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power to come back and enforce Section
three of the Fourteenth Amendment. By the

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sort of structural provisions of the Constitution. This is a provision that's designed for

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congressional enforcement for rational remedies and congressional
mechanisms. As a practical matter, it

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makes very little sense for states to
add these sorts of burdens on presidential candidates.

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They want to do it for state
candidates, it's their own thing,

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but to do so for presidential candidates
makes very little sense. It makes very

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little sense given that Congress can lift
the disability by a two thirds vote,

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so for a state to step in
and hold a candidate not qualify, for

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Congress to swoop in later and have
to say, well, now we're going

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to lift the disability so this candidate
is not disqualified, which seemed to burden

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Congress and at very ends. Or
there are a series of practical concerns that

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one state's evidentiary law or when states
procedural set up for how these challenges are

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filed, could have a ripple effect
throughout the United States, and we might

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reach inconsistent verdicts across the United States. And states in particular have less of

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an interest in presidential elections simply because
they are national offices in the national office

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in nature, and the notion that
states could adjudicate qualifications make these determinations and

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contested factual claims and reach kind of
a patchwork result across the United States,

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not something that makes a whole lot
of sense structurally. So that was Part

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two B of the Procureum opinion,
joined in full by Justice Barrett, and

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joined again in logic, if not
in full by the concurring opinion by Justices

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sot Of, my Ar, Kagan, and Jackson. So that could have

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been it right, That would have
been a lot easier of a story to

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talk about, But instead there got
to be a lot of friction on the

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Court in a different context. So
Part two A of the opinion, and

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this is where Justice Barrett peels off, along with the other concurring justices,

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address to sort of a separate question, which is not whether or not states

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have the power to enforce Section three
of the Fourteenth Amendment. It's more a

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question of who else and in what
context has the power to enforce Section three

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of the Fourteenth Amendment. And for
that the Court turns to sort of the

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way that Section three is set up. It speaks about how Congress has this

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role now to enforce the provisions of
Section three of the Fourteenth Amendment. Section

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five of the Fourteenth Amendment provides for
Congress to have the power to enforce this

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provision of the Constitution with appropriate legislation. That appropriate legislation must meet, in

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the words of other Supreme Court president
including City of Bernie versus Flores, must

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be congruent and proportional to remedy the
concerns that are addressed by these provisions the

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Constitution that when Congress steps in and
enforces it provides this sort of holistic remedial

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scheme. And when we look at
the fact that we're dealing with this question

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insurrection, and Justice cavanat oral argument
did say, the word insurrection stands out

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to him. It requires an ascertainment
or it requires a determination. This is

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something the Colorado Supreme Court recognized was
necessary in this case, the determination of

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whether someone engaged in insurrection, which
required procedures and factual findings. And this

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is also what Justice Chase on the
United States Supreme Court then riding circuit as

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a circuit Justice eighteen sixty nine said
in a case called Griffin Case. In

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Griffin's case has a lot of attention
in some of the scholarly discourse. Where

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a federal judge was sitting in Habeas
one year after ratification of the Fourteenth Amendment,

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which is ratified in eighteen sixty eight. So in eighteen sixty nine,

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he's sitting in habeas and he's hearing
a habeas challenge from Griffin, who had

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been convicted in West Virginia State court, and he's challenging the conviction in federal

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court to say, well, my
conviction is invalid because it was adjudicator issued

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by a judge who was barred from
holding office by section three of the Fourteenth

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Amendment. And Chase writing this opinion
says, look, I'm not in a

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position to be able to determine these
things. In part I have to make

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a determination, or do you Some
of the language the court here quotes from

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precedings, evidence, decisions, and
enforcements of decisions are indispensable, saying unless

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he's given some guidance, especially from
Congress, to figure out what to do

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here, Justice is not in a
position to make this adjudication in court.

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So Part two A of the opinion
really rides heavily on Congress's role here.

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Congress's role the language has Congress or
the Constitution empowers Congress, It enables Congress,

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subject to judicial review, to pass
appropriate legislation and Congress's Section five power

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is critical when it comes to Section
three. So the Court provides these sorts

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of statements as it then leads into
the argument that the state lacks the power.

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At the very end of the opinion, the procureum opinions is, these

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two things kind of go hand in
hand. All of these things are essential.

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It's that Congress is the one that
does these things and that states lack

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the power to do so. Now, Justice Vera writes separately to say,

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I agree on the states lack the
power. We don't need to decide anything

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else today. I would not go
in the path that the majority has done.

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And then you have the concurring opinion. The concurring opinion by justices sort

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of my Rka again and Jackson again. While they seem to agree with part

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two of the opinion, essentially agreeing
that states don't have any such authority,

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they fracture very badly with the majority's
approach thinking about this congressional role. Some

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of the language the core that the
concurring opinion uses saying that these musings about

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Griffin's case and about congressional power are
as inadequately supported as they are gratuitous,

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and they go on to suggest that
Section three's text doesn't say that this is

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congressional enforcement alone. They point out
that other provisions of the Constitution, including

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the Reconstruction Amendments, including things like
due process and equal protection and the abolition

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of slavery, don't require additional congressional
implementing legislation. They worry about how this

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is going to be applied in the
future and whether or not they're adding these

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constraints on how Congress goes about enforcing
Section three and prohibiting other actors from enforcing

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Section three sort of. One concrete
example they give is the concern that the

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it forecloses judicial enforcement of that provision, such as might occur when a party

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is prosecuted by an insurrectionist and raises
a defense on that score, the notion

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being that without congressional implementing legislation,
if you have someone who had taken an

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oath to support the Constitution, engaged
in insurrection and now was serving as a

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judge, it would be impossible for
somebody to raise a defense to say this

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judge is not authorized to hold this
office without some kind of implementing legislation.

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So there were some sharp elbows there
on the Court on this provision, again

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five justices, so there was a
majority on the view that this is something

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that requires congressional legislation at least to
some degree, along with a series of

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a more general agreement that states lack
this power. So a few things to

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talk about here. The first is
the court doesn't touch really any factual issues.

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It doesn't touch questions about, you
know, whether January sixth was an

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insurrection, whether Donald Trump and Gain
aged in an insurrection, whether or not

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his speech or his conduct was protected, was not protected, whatever it is,

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doesn't really touch any of that at
all. These are just pure legal

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questions that the Court is focused on. Another is that this really closes the

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door and any of these ballot challenges
going forward, whether it's the primary election

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of the general election. The Court
is quite clear that there's no role for

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the state in enforcing these provisions.
Another is that the opinion is very centered

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on Section three of the fourteenth Amendment, so it doesn't seem to foreclose the

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possibility that states exercising their power under
Article two of the Constitution to exclude say

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a twenty one year old from the
ballot or a Nicaragua National from the ballot

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might continue to be able to do
so. Instead, the opinion looks much

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more at Section three and how the
fourteenth Amendment shifts this balance of power among

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the federal government and the state governments
to say that it's foreclosing some authority from

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the states, and that there's not
affirmative enforcement authority given to the state as

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a result of this opinion. So
it seems very much cabined to what's happening

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with the fourteenth Amendment and doesn't really
touch on other presdential qualifications disputes, election

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disputes, ballid access disputes. If
we're just dealing with Section three of the

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fourteenth Amendment. It also seems that
it would appear to foreclose challenges to even

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might arise after the election. This
is some of the opinion that I'm still

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wrapping my mind around and trying to
understand how different parts of the opinion interact

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with one another. But the court's
emphasis on speaking about Congress and legislation and

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how that remedy needs to be tailored
adequately to the remedy or to the harm

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that you've identified, really does seem
to say that challenges under say the Electoral

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Count Reformact on January sixth, twenty
twenty five by members of Congress would be

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inappropriate, or that challenges to agency
activity under section seven oh six of the

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Administrative Procedures Act might be improper.
That is to suggest that somebody lacks the

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authority because they were appointed by somebody
ineligible or because they themselves are ineligible.

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And it's very hard to identify exactly
what the court is doing when it is.

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When it is suggesting that Congress has
a role here with legislation, what

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are those things that Congress can do
apart from legislation, such as seating its

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own members versus enacting legislation? What
things by as the concurring opinion points out

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general federal statutes, you know,
such as the Administrative Procedures Act or the

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Electoral Count Reformat what kinds of deference
is going to be given to Congress when

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it is acting pursuant to those rules
or when courts are acting pursuant to those

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rules rather than things under its enforcement
authority under section three to fourteenth Amendment.

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So there are some myriad questions that
are ahead. So it fails to provide

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some of the clarity which I think
was part of the goal of section A,

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Part two A of this opinion that
might close the door on some of

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these challenges going forward. But I
think, and at least my sense is

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that the intent of this provision is
to foreclose those challenges. And while they

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might not formally be closed off,
I mean, it's going to be much

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harder to bring any such challenges.
And I've already seen a number of suggestions

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that there's cold water being thrown on
these challenges. Some members of Congress are

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introducing legislation to enforce Section three of
the fourteenth Amendment, again getting the cue

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from the Supreme Court here that it
has a role to play here, and

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I think there's very little likelihood that
we get through this Congress, but at

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least the understanding that this is a
congressional responsibility in a case like this,

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And again I think now it's just
left of the political process. There'll be

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major questions about presidential immunity coming up
in the weeks ahead, as the Supreme

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Court here is that case number of
criminal challenges in the United States, the

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ordinary political process playing out, where
candidates are vying for the delegates and trying

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to get enough delegates to win the
convention on the general election, and all

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the things that happen in that domain. So I think there's not going to

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be a closing off of the fact
that the public will continue to intensely dispute

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what is an insurrection, whether or
not Trump engaged in an insurrection, and

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so on going forward. But I
think it has at least closed that door

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when it comes to states attempting to
enforce it for their balid access provisions.

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Thank you for listening to this episode
of SCO Discast. SCO Discust is a

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project of the Federalist Society, not
for profit educational organization of conservative and libertarian

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law students, law professors, and
lawyers, founded upon the principles that the

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state exists to preserve freedom, that
the separation of governmental power is essential to

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our constitution, and that it is
emphatically the province and duty of the judiciary

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to say what the law is,
not what it should be. Don't forget

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to subscribe to our podcast series,
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on iTunes or Google Play. For
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as audio and video of past Federalists
events, please visit our website at fedsoc

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dot org slash multimedia. That's f
E d s OC dot org slash Multimedia.

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This has been a FEDSOC audio production