Previously, I posted on SSRN an analysis of why Clement Vallandigham is relevant to the question whether Congress must enact a statute to enforce section 3 of the Fourteenth Amendment in order to permit a state court to adjudicate if a particular presidential candidate is disqualified by the section. The analysis showed that Vallandigham’s status under section 3 was uncertain and debatable and that Ohio’s legislature in 1868 decided against electing him U.S. Senator from the state because of the possibility that the Senate would refuse to seat him because of its view that he was disqualified by section 3. Given this, the analysis concluded that Ohio’s legislature (or indeed any state’s) could have exercised its authority under Article II to assure that the state’s presidential electors would not vote for Vallandigham because of a similar risk that Congress, acting in its joint session pursuant to the Twelfth Amendment, would view him as disqualified from the presidency.
Trump’s reply brief (at page 19) wants to make emphatically clear that Trump’s “claim is that section 3 may be enforced only through the congressionally enacted methods of enforcement.” The brief elaborates this point by saying, first, that until Congress enacted its enforcement statute in 1870, the constitutional disqualification in section 3 could not be enforced at all. The brief continues by saying, second, that after Congress repealed its 1870 enforcement statute and granted amnesty to Confederates, section 3 cannot be enforced against any other insurrectionists (except for by means of a criminal prosecution pursuant to the federal statute that makes insurrection a crime).
It’s important to understand the implications of Trump’s argument and how inconsistent it is with the relevant history. First, if Trump is correct that “section 3 may be enforced only through the congressionally enacted methods of enforcement,” it would mean that the Senate could not have unilaterally disqualified Vallandigham if the Ohio legislature had elected him as the state’s U.S. senator in 1868. Article I, section 5 grants each chamber of Congress the power to judge the qualifications of its own members. But Trump is claiming that the section 5 is special and requires “congressionally enacted methods of enforcement”–complying with bicameralism and presentation–such that no other entity of government (not the Senate unilaterally pursuant to Article I, section 5, nor state legislatures pursuant to Article II) can enforce section 3 of the Fourteenth Amendment as part of their otherwise existing authority over the qualifications of elected offices. This argument is preposterous, contradicting the widespread understanding that each chamber of Congress as well as state governments were entitled to enforce section 3 without need of implement congressional legislation insofar as it was relevant to matters within its own jurisdiction.
Indeed, if Trump is correct in this argument, it was foolish for the Ohio legislature to fear that the U.S. Senate might have rejected the legislature’s election of Vallandigham on section 3 grounds. The Ohio legislature, controlled by anti-Reconstruction Democrats at the time, could have forced the Senate to accept Vallandigham because Congress had not yet enacted its enforcement statute. No one at the time understood section 3 to work this way.
Vallandigham ran for governor of Ohio as well as for a U.S. Senate seat. His gubernatorial campaign was before the Fourteenth Amendment was ratified, but suppose he had run again for governor in 1869. Individuals disqualified under section 3 are barred from being governor as well as U.S. senator. But Trump’s argument is that in 1869 Ohio’s legislature could not have enacted a statute to adjudicate whether or not Vallandigham was disqualified under section 3 in order to prevent the possibility that a disqualified individual might be elected the state’s governor. Instead, Trump is claiming that Ohio’s legislature would have been powerless in this respect because Congress had not yet enacted an enforcement statute. Trump’s argument in this regard is contrary to the historical understanding and practice at the time.
Trump’s argument means also that there can’t be any enforcement of section 3 with respect to anyone who betrayed a previous oath to the Constitution by becoming involved in the violent January 6 assault upon Congress for the purpose of thwarting the Twelfth Amendment joint session to count the electoral votes. If an oath-breaking perpetrator (like Couy Griffin of New Mexico) runs for Senate, the Senate cannot refuse to seat that individual because there is no “congressionally enacted” enforcement statute. Likewise, if an oath-breaking perpetrator runs for governor, the state legislature can’t enforce against this individual a state statute that prevents ineligible candidates from being on the ballot as a gubernatorial candidate. The argument defies credulity.
Trump’s reply brief asserts that Congress has the power to preempt any other institution of government’s enforcement of section 3. This is undoubtedly true. But Trump goes on to say that Congress has exercised this preemptive authority by repealing its previous enforcement statute and not enacting a new one. This additional argument goes too far. To be sure, Congress took away its previous specific enforcement mechanism and granted amnesty to the Confederates. But that was not a congressional declaration that there can be no enforcement of the disqualification provision whatsoever (apart from criminal prosecution). If it had been, then the House of Representatives could not have unilaterally enforce section 3, as it did, after World War I pursuant to its Article I, section 5 authority. To preempt other institutions of government from enforcing section 3 pursuant to their own jurisdictions, Congress would have had to act with much more clarity than it did simply by repealing a previous enforcement mechanism.
Finally, Trump’s reply brief argues that plaintiffs’ position entails the proposition that Trump was immediately disqualified as of January 6, 2021, and therefore his conduct during the last two weeks of his presidency were null and void. But this argument is mistaken. Rejecting Trump’s claim that Congress has exclusive enforcement authority over section 3 does not mean that section 3 operates automatically without any enforcement mechanism whatsoever. On the contrary, as Derek Muller has explained persuasively, section 3 needs institutions with authority to enforce it, but these institutions can get their authority from other sources of law. Thus, the Senate and the House separately and unilaterally can enforce section 3 pursuant to their Article I, section 5 power. State legislatures can enforce section 3 with respect to state and local offices by virtue of their general regulatory power over these offices. And state legislatures also can enforce section 3 by virtue of their Article II power to control the manner of appointing presidential electors, which as Chiafalo held encompasses the power to force electors to vote for president in the way that the state legislature dictates.
Trump may have other valid arguments for reversing the Colorado Supreme Court’s decision against him, but the congressional exclusivity claim set for in his reply brief is not one of them.