Noah Feldman on section 3 & Trump

Bloomberg Opinion (via Washington Post):

“There are two problems with the notion that Trump can and should be kept off the ballot by state election authorities.

“First, although Baude and Paulsen’s originalism is honest and conscientious, originalists outside of academia typically won’t apply their originalism if it leads to a result at odds with their conservatism. Second, there is precedent that contradicts their argument — precedent the scholars dismiss because they say it contradicts the original meaning of Section 3. 

“… This constitutional provision is law and requires no further action by Congress to implement it, [their] article says. Courts can and should apply it, but we don’t need to wait for them to do so. Any government official, state or federal, whose duty it is to apply the Constitution must obey Section 3. It follows, the authors say, that the state officials who set the ballots for the primaries and general elections should exclude Trump. If he wants to fight that in court, he can. But there’s no need for the officials to wait for a judicial determination.

“To state this argument is to see why it won’t be followed by state officials. Was the Jan. 6 attack on the Capitol an “insurrection”? Did Trump participate or give aid and comfort to the “enemies” of the Constitution under Section 3? These are contentious questions of constitutional interpretation.

“True, all state and federal officials are sworn to uphold the Constitution. But today we are accustomed to having the judiciary, and ultimately the Supreme Court, resolve tough constitutional questions.

“A state election official who blocked Trump from the ballot would understandably feel an enormous amount of trepidation about making such an epochal decision absent judicial guidance. And even if local officials were prepared to bar Trump, they would be ill advised to do so as a matter of constitutional law.

“The Supreme Court as a whole has never directly interpreted Section 3. But in 1869, the chief justice of the United States, Salmon P. Chase, issued a circuit court opinion in Griffin’s Case interpreting Section 3. (At the time, it was normal for Supreme Court justices also to work as circuit court judges.) In it, Chase held that Section 3 was not automatically enforceable — what lawyers call “self-enforcing” — but rather could only go into effect if Congress passed a law directing its implementation. Such legislation is not today in existence.

“A circuit court decision, even one written by a sitting chief justice, doesn’t formally bind the judiciary or even the other courts of appeal. Nevertheless, the opinion is overwhelmingly the most important precedent interpreting Section 3. It has not been seriously questioned by the Supreme Court or the other courts of appeal since it was set down more than 150 years ago. Because it is still on the books, ignoring it would be an act of legal irresponsibility.”

Feldman may be correct that the current U.S. Supreme Court will rely on Griffin even though it is clearly not binding precedent on the Court. But Feldman does not address the argument I made in my Washington Post column about the possibility of a state statute enforcing section 3 of the Fourteenth Amendment in the specific context of appointing presidential electors. To be sure, section 3 may not be completely “self-executing”; it may need some form of legislation creating appropriate procedures for adjudicating the disqualification of specific individuals, so that government officials don’t go about these disqualification decisions entirely on their own without appropriate due process. But this point does not preclude the possibility that a state statute pursuant to Article II might qualify as constitutionally appropriate implementing legislation.

Indeed, as I’ve mentioned previously, notwithstanding Grifffin and its recognition for the need of some implementing procedures, it is hard for me to imagine that the Supreme Court of the Reconstruction era would have required Congress to give state legislatures permission in order to enact their own statutes adopting procedures design to make sure that their own presidential electors did not vote for an individual disqualified under section 3 of the Fourteenth Amendment. Again, I consider the hypothetical possibility of Clement Vallandigham seeking the Democratic nomination in 1872 (had he not died accidentally the previous year), and various states wishing to make sure that he was not eligible to receive their electoral votes because of his support for the Confederacy during the Civil War. The issue of his status under section 3 of the Fourteenth Amendment would have needed some form of adjudication; it was not as obviously straightforward as someone like Breckinridge’s. Had a state statute developed a procedure for adjudicating Vallandigham’s disqualification under section 3, so that he was ineligible to receive the state’s electoral votes, I don’t believe the Supreme Court would have considered Griffin to be a barrier to the efficacy of that state statute. That would have been too much intrusion on the constitutional prerogative of the state legislature under Article II. To be sure, if Congress had created an alternative procedure pursuant to its own enforcement power under section 5 of the Fourteenth Amendment, the congressionally designated procedure would have preempted the state’s under the Supremacy Clause. But the nonexistence of a congressionally enacted procedure would not have divested the state legislature of its own authority under Article II to appoint presidential electors in a “manner” consistent with the state legislature’s own understanding of its obligation to enforce the disqualification provision in the Fourteenth Amendment (just as a state legislature does not Congress’s prior approval to enforce other eligibility requirements applicable to presidential elections).

In sum, I don’t think Feldman’s piece addresses all the relevant questions–at least not if a state legislature adopts the kind of statute that I envision.

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