Judge Luttig and Larry Tribe in The Atlantic, agreeing with the Baude-Paulsen view of Trump’s disqualification under section 3 of the Fourteenth Amendment:

“The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.

“The former president’s efforts to overturn the 2020 presidential election, and the resulting attack on the U.S. Capitol, place him squarely within the ambit of the disqualification clause, and he is therefore ineligible to serve as president ever again. The most pressing constitutional question facing our country at this moment, then, is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause. …

“The evidence laid out by the legal scholars William Baude and Michael Stokes Paulsen in “The Sweep and Force of Section Three,” available as a preprint, is momentous. Sooner or later, it will influence, if not determine, the course of American constitutional history—and American history itself. …

“Baude and Paulsen also conclude that Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is “self-executing.” (Other scholars have relied on Chief Justice Salmon P. Chase’s poorly reasoned opinion in an 1869 case called In Re Griffin to support the contrary view. Baude and Paulsen decisively dismantle Griffin as a precedent.)

We share [Michael McConnell’s] concerns, and we concur that the answer to them lies in the wisdom of judicial decisions as to what constitutes “insurrection,” “rebellion,” or “aid or comfort to the enemies” of the Constitution under Section 3.

“As a practical matter, the processes of adversary hearing and appeal will be invoked almost immediately upon the execution and enforcement of Section 3 by a responsible election officer—or, for that matter, upon the failure to enforce Section 3 as required. When a secretary of state or other state official charged with the responsibility of approving the placement of a candidate’s name on an official ballot either disqualifies Trump from appearing on a ballot or declares him eligible, that determination will assuredly be challenged in court by someone with the standing to do so, whether another candidate or an eligible voter in the relevant jurisdiction. Given the urgent importance of the question, such a case will inevitably land before the Supreme Court, where it will in turn test the judiciary’s ability to disentangle constitutional interpretation from political temptation. (Additionally, with or without court action, the second sentence of Section 3 contains a protection against abuse of this extraordinary power by these elections officers: Congress’s ability to remove an egregious disqualification by a supermajority of each House.) …

“The process that will play out over the coming year could give rise to momentary social unrest and even violence. But so could the failure to engage in this constitutionally mandated process. For our part, we would pray for neither unrest nor violence from the American people during a process of faithful application and enforcement of their Constitution.”

If one compares this position to the Douthat column blogged previously it seems clear that we are in for a national debate, ultimately to be resolved by the U.S. Supreme Court, whether or not Chief Justice Salmon Chase’s view expressed as a circuit justice (and not for the Supreme Court itself) in In Re Griffin is a sound precedent–that is, whether or not Congress must enact a new statute in order for any officer of state or federal government to implement the disqualification provision of section 3 of the Fourteenth Amendment.

Even assuming that In re Griffin was wrongly decided and the U.S. Supreme Court will not embrace it for the reasons Baude, Paulsen, Luttig, and Tribe all maintain, there is the separate question of whether state officials under state law have the authority to adjudicate the disqualification issue in the context of a popular vote for the purpose of appointing presidential electors. This was one of the main points in my Washington Post column. It is also one of the key points that Derek made his immensely valuable recent ELB post on this topic. It may be the case in some (and perhaps even all) states that a proper interpretation of existing state statutes gives state officials that authority. But I imagine that this issue will be debatable in many (and, again, perhaps all) states on a state-by-state basis. It is also not inconceivable to me that the current Court might invoke some sort of “clear statement rule” or “major questions doctrine” or equivalent principle to say that on something as momentous as disqualification of a former president from running again a state legislature needs to make clear the exercise of its Article II authority to mandate that its administrative officials and courts adjudicate this issue.

Indeed, I can imagine this kind of “clear statement rule” or “major questions doctrine” concept interacting with the In re Griffin issue. If Congress already had established a civil litigation procedure for the adjudication of whether any particular individual is disqualified from government service under section 3 of the Fourteenth Amendment, then there would be no need to worry about whether or not a state legislature had created its own separate procedure for this purpose. But where Congress has not already created such a procedure, rather than ruling out the idea that state legislatures are entitled to invoke their Article II power to preclude a state’s presidential electors from being pledged to a candidate that the state legislature has sound reason to think is disqualified, the Court could take a middle ground position by saying that this Article II power exists but that it needs to be unambiguously invoked by a state legislature in order for disqualification proceedings to go forward. In other words, when the national legislature has not acted on this issue, at least a state legislature must do clearly, before a state’s administrative officials and courts take the matter into their own hands.