Gerald Magliocca:

We now have a written opinion from the District Court. It’s a slapdash effort. I’ll confine my discussion to the Court’s Amnesty Act analysis, and leave others to discuss issues such as abstention.

The fatal flaw in the opinion is that the Court assumes that Section Three of the Fourteenth Amendment gives Congress the power to provide prospective disqualification waivers. There is no analysis of that premise at all. This is a shocking omission in addressing an important claim of first impression. And since the District Court assumes the constitutionality of prospective amnesty, there is no need for the Court to grapple with the canon of constitutional avoidance, which counsels in favor of reading the Amnesty Act more narrowly. Life is easy when counterarguments can be ignored.

The opinion’s statutory reading is no better. The Court argues that the Amnesty Act’s use of the terms “imposed” and “whomsoever” to describe those receiving a waiver (except for those excluded such as Jefferson Davis) is unambiguous and applies to all other people; living, dead, and unborn. This is wrong. Imposed could mean “already imposed.”  If the language is read to mean “already imposed,” then that limits the term “whomsoever”  to ex-Confederates. Of course, the Court’s assertion that this is a plain meaning case allows the opinion to ignore the legislative history of the Act, which provides no support for a prospective interpretation. (It’s worth adding that nobody thought that a prospective reading was the meaning, let alone the plain meaning, of the Amnesty Act until 2022.)    …