The following is a guest post from Ben Horton of Free Speech for People:
Given the news of the FBI executing a search warrant at Mar-a-Lago, Professor Rick Hasen recently reposted Professor Ned Foley’s suggestion from last October that an 1869 circuit opinion, In re Griffin or Griffin’s Case, held that Section Three of the Fourteenth Amendment, known as the Disqualification Clause, can only be enforced by Congressional action. Thus, he called for Congress to pass a law authorizing the Justice Department to file a civil suit to adjudicate Trump’s ineligibility as “any lawsuit [that] attempted to keep Trump’s name off the ballot . . . easily could fail based on the 1869 precedent.” (It’s not clear why the statute should be limited to Trump).
As Trump’s likely candidacy announcement draws closer, it is important to reiterate that there is no reason to wait for Congress to act. As discussed below, Professor Gerard Magliocca, whom Foley cites, believes In re Griffin was wrongly decided. Furthermore, the text and history of the Disqualification Clause, as well as recent federal court precedent—postdating Foley’s initial suggestion—demonstrate that state election officials have the constitutional authority and duty to enforce it and to exclude oath-violating insurrectionists from the ballot, with or without Congressional action.
First, the holding of In re Griffin is that before someone is disqualified there must be “proceedings, evidence, decisions, and enforcements of decisions, more or less formal.” 11 F. Cas. 7, 26 (C.C.D. Va. 1869). The Chief Justice then suggests in dicta that “these can only be provided for by congress.” Id. He then goes on to argue that Section Five of the Fourteenth Amendment must be read to qualify Section Three; because it gives Congress the power to enforce all the provisions of the Fourteenth Amendment, it must—for some reason, which goes unspoken—give those powers to Congress exclusively. In any case, both the dicta and the holding are unpersuasive and contrary to the constitutional text and history.
As an initial matter, there is good reason to be suspicious of Chief Justice Chase’s opinion—both the holding and the dicta. As the Honorable C. Ellen Connally has noted, before ratification, Chief Justice Chase worked to keep out Section Three “on the basis it was too harsh on former Confederate officials.” And his reasoning plainly reflected these biases. Griffin’s Case presented a narrow question on a writ of habeas corpus: are the acts of disqualified officials (here, a judge) valid? But the Chief Justice reached out to decide a much broader question—one that had the potential to limit the application of Section Three—in deciding it was not self-executing, and suggesting congressional action was required. Indeed, had he ruled that the acts of disqualified officials were valid, the application of Section Three might have been even wider because practical concerns about undoing years of everyday judgments and legislation would be erased. Second, the Chief Justice suggested from the bench a year before in the treason trial of Jefferson Davis that Section Three was self-executing and therefore the Double Jeopardy Clause barred that prosecution. That is, the Chief Justice ruled in favor of reconciliation with former Confederates rather than giving a consistent (or correct) meaning of the Fourteenth Amendment. This historical background should give modern jurists pause.
Chief Justice Chase’s references to Section Five of the Fourteenth Amendment also fail. Section Five empowers Congress to enforce the provisions; that is not inconsistent with self-execution nor state implementation. After all, as Professor Magliocca points out, what is good for Section Three of the Fourteenth Amendment is good for Section One (the home of the Due Process and Equal Protection Clauses), and as “there is no doubt that Section One is self-executing,” there should be no doubt that Section Three is self-executing. And as Professor Mark Graber recently argued, a contrary interpretation would call into question over a century of precedent: “if we are to harken to calls to respect the original understanding of the Fourteenth Amendment, the same courts that refuse to disqualify persons from public office who participated in the January 6, 2021 insurrection will on principle be obligated to reverse the Supreme Court’s decision in Brown v. Board of Education (1954), which was also based on the independent judicial authority to interpret the Fourteenth Amendment.” To put it mildly, this counsels against In re Griffin’s persuasive value.
Furthermore, the Chief Justice’s dicta and holding are inconsistent with contemporary courts. The same year Chief Justice Chase suggested that only Congress could enforce Section Three, the Louisiana Supreme Court rejected arguments that the enforcement of Section Three was solely the province of the federal government, noting, “the State has obviously a great interest . . . and a clear right to” pass legislation enforcing Section Three. State ex rel. Sandlin v. Watkins, 21 La. Ann. 631, 632 (La. 1869). Similarly, that same year the North Carolina Supreme Court applied a state statute enforcing Section Three. Worthy v. Barrett, 63 N.C. 199,200–01 (1869); accord In re Tate, 63 N.C. 308 (1869).In addition, Congress passed a law in 1869that made it a crime to take office if you were disqualified under Section Three; a circuit court in 1871 instructed jurors to find a sheriff guilty of violating the law if he had engaged in insurrection—the assumption of both the drafters of the law and the judge was that the disqualification was self-executing and required no prior adjudication. United States v. Powell, 27 F. Cas. 605 (1871). Chief Justice Chase’s opinion was outside the contemporary consensus in 1869.
And if the dicta is to be considered at all, its context must be accounted for. Magliocca points out that “The Chief Justice was not denying states the power to enforce Section Three on their own. First, he was discussing federal cases under a writ of habeas corpus. Second, Virginia at the time was an unreconstructed state . . . and so there was no legitimate state government there that could act.” That is, even if proceedings are required, there is no reason state law cannot provide for those proceedings—as many states do.
That this concerns a presidential candidate does not change the calculation; if anything, it strengthens it. As Foley notes, both Obama and Trump are constitutionally ineligible for office—Section Three is nothing more than another constitutional qualification. But there is precedent in both the 9th and 10th Circuits, the latter written by Justice Gorsuch as a Circuit Judge, that states have the power to bar unqualified presidential candidates from the ballot. Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014); Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012). Justice Gorsuch held that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” If states can bar candidates from the ballot based on qualifications found in Article II, why not the Fourteenth Amendment?
Finally, Section Three challenges are no longer hypothetical. Since Foley’s original post, the Fourth Circuit and the Northern District of Georgia have allowed state challenges based on Section Three to move forward (though the former is now moot). The Fourth Circuit noted “In 1868—three years after the end of the late wicked Rebellion—the Constitution was amended to disqualify from future federal or state office certain public officials who . . . shall have engaged in insurrection or rebellion against the United States or given aid or comfort to the enemies thereof.” Cawthorn v. Amalfi, 35 F.4th 245, 248 (4th Cir. 2022) (citations omitted). Section Three disqualified them; no Congressional action is required. Judge Amy Totenberg of the Northern District of Georgia noted with approval the decision by Justice Gorsuch in allowing a Section Three challenge against Representative Greene to go forward. Greene v. Raffensperger, No. 22-CV-1294-AT, 2022 WL 1136729, at *26 (N.D. Ga. Apr. 18, 2022). And an administrative law judge in Georgia ruled on the merits of that challenge, even though he incorrectly concluded that Greene did not “engage” in the January 6 insurrection. The only court to reject a challenger’s ability to bring a Section Three claim in state courts did so solely on state law grounds. Hansen v. Finchem, No. CV-22-0099-AP/EL, 2022 WL 1468157 at *1 (Ariz. May 9, 2022).
Trump is ineligible for the office of the presidency. Every state has an interest and a duty in protecting the integrity of its ballot and preventing unqualified candidates from running for office. They should not wait for Congress to ensure that the Constitution is enforced.