The Fourth Circuit heard oral argument in Cawthorn v. Amalfi today, a challenge to Representative Madison Cawthorn’s eligibility under the Fourteenth Amendment and whether North Carolina has the power to exclude him from the ballot. The News & Observer has a story about it, and I won’t rehash the details here (Disclosure: I filed an amicus brief in support of no party in the case.)

But one point I wanted to write about. The challengers opened with a citation to an 1868 Act (multiple times, before being interrupted to get to some other issues that the presiding judge wanted to hear about), and returned to it in rebuttal, an issue that had been hardly mentioned in some briefing before but apparently became a framing point at oral argument. The argument goes, Congress empowered the states in this act to disqualify insurrectionists from election to Congress.

This argument makes several mistakes.

Here’s the text of the Act, 15 Stat. 73, enacted June 25, 1868 (with an emphasis on Section 3):

An Act to admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress.

Whereas the people of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida have, in pursuance of the provisions of an act entitled “An act for the more efficient government of the rebel States,” passed March second, eighteen hundred and sixty-seven, and the acts supplementary thereto, framed constitutions of State government which are republican, and have adopted said constitutions by large majorities of the votes cast at the elections held for the ratification or rejection of the same : Therefore,

Be it enacted by the Senate and Home of Representatives of the United States of America in Congress assembled, That each of the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, shall be entitled and admitted to representation in Congress as a State of the Union when the legislature of such State shall have duly ratified the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as article fourteen, upon the following fundamental conditions: That the constitutions of neither of said States shall ever be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State: Provided, That any alteration of said constitution may be made with regard to the time and place of residence of voters; and the State of Georgia shall only be entitled and admitted to representation upon this further fundamental condition that the first and third subdivisions of section seventeen of the fifth article of the constitution of said State, except the proviso to the first subdivision, shall be null and void, and that the general assembly of said State by solemn public act shall declare the assent of the State to the foregoing fundamental condition.

Sec. 2. And be it further enacted, That if the day fixed for the first meeting of the legislature of either of said States by the constitution or States ordinance thereof shall have passed or have so nearly arrived before the passage of this act that there shall not be time for the legislature to assemble at the period fixed, such legislature shall convene at the end of twenty days from the time this act takes effect, unless the governor elect shall sooner convene the same.

Sec. 3 And be it further enacted, That the first section of this act shall take effect as to each state, except Georgia, when such State shall, by its legislature, duly ratify article fourteen of the amendments to the Constitution of the United States, proposed by the Thirty-ninth Congress, and as to the State of Georgia when it shall in addition give the assent of said State to the fundamental condition hereinbefore imposed upon the same; and thereupon the officers of each State duly elected and qualified under the constitution thereof shall be inaugurated without delay; but no person prohibited from holding office under the United States, or under any State, by section three of the proposed amendment to the Constitution of the United States, known as article fourteen, shall be deemed eligible to any office in either of said States, unless relieved from disability as provided in said amendment; and it is hereby made the duty of the President within ten days after receiving official information of the ratification of said amendment by the legislature of either of said States to issue a proclamation announcing that fact.

*

Challengers note that as a condition of North Carolina’s readmission to the Union, it had to promise not to elect officers who were prohibited from holding office under Section 3 of the 14th Amendment. That, challengers argue, gives states the power to adjudicate qualifications even to this day. But it has several problems, both as a matter of constitutional law and as a matter of statutory interpretation.

The first problem is that if my Article I understanding is correct (and of course I think it is!), Congress could not delegate the power to adjudicate qualifications by statute, no more than it could delegate, say, the power to impeach or to try impeachments.

Second, because this Act actually predates ratification of the Fourteenth Amendment, it would be an additional qualification for members of Congress, which U.S. Term Limits forecloses, and the Act is not naturally read that way.

Third, that the bill is styled as a condition of admission of states and of admission of congressional delegation, but the specific language at issue relates only to state officers, not to members of Congress. Start with the heart of the opening clause in Section 3 of the Act: “the officers of each State duly elected and qualified under the constitution thereof shall be inaugurated without delay.”

No one would use the phrase “officers of each State” to mean Representatives in Congress, and one can find ample evidence (including in Section 3 of the Fourteenth Amendment itself) to distinguish officers “under the United States” and officers “under any state”; and, separately, “a Senator or Representative in Congress.”

A member of Congress is not “qualified under the constitution thereof,” that is, of the state. An officer of the state, however, may well be “qualified under the constitution” of a state.

The disqualifying language, too, is “shall be deemed eligible to any office in either of said States.” Again, “any office in either of said States” is language not about members of Congress or about a federal office.

There are many directions for these cases to go, on statutory or constitutional grounds, and procedural or substantive grounds. We’ll see how the Fourth Circuit approaches the case.