The more I try to parse out the dispute between the majority’s Part II-A of its opinion (and other language) and the opinion concurring in the judgment in Trump v. Anderson, the less confident I am that I understand what the 5-4 dispute is about or how we got here. The consensus view of the Court is pretty straightforward (even if critiqued by some over the last couple of days). Justice Barrett identifies a “different path” in Part II-A, which she does not join. She critiques the “temperature” from an opinion concurring in the judgment by Justices Sotomayor, Kagan, and Jackson, who cite, inter alia, Dobbs v. Jackson Women’s Health Organization and Bush v. Gore in a critique of this part of the opinion.

What are the stakes for such a strong disagreement? And, maybe more saliently, is there even a disagreement to be found across the opinions?

Everyone on the Court agrees that states have no power to ascertain whether a federal candidates is disqualified under Section 3 of the Fourteenth Amendment. The dispute instead arises over three separate but related questions: (1) whether Congress (as opposed to other actors in the federal government) has the exclusive power to do so; (2) whether Congress when enforcing Section 3 must do so pursuant to legislation; and (3) regardless, whether any congressional legislation must be appropriately “tailored” under Section 5 of the Fourteenth Amendment. These arguments are conflated and elided over throughout the short opinion, so it’s worth trying to determine the stakes.

[1] Part II-A is short. It has some (I think!) unobjectionable background, some descriptions of justification, and a few sentences of the essential claims (all of which are direct quotations):

1. Section 3 works by imposing on certain individuals a preventive and severe penalty—disqualification from holding a wide array of offices—rather than by granting rights to all.
2. It is therefore necessary, as Chief Justice Chase concluded and the Colorado Supreme Court itself recognized, to “‘ascertain[] what particular individuals are embraced’” by the provision. [Griffin’s Case]
3. The Constitution empowers Congress to prescribe how those determinations should be made.
4. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment. See City of Boerne v. Flores, 521 U. S. 507, 536 (1997).
5. Congress’s Section 5 power is critical when it comes to Section 3.
6. [Later, in Part II-B of the opinion (a part joined by Justice Barrett), the Court explains:] Moreover, permitting state enforcement of Section 3 against federal officeholders and candidates would raise serious questions about the scope of that power. Section 5 limits congressional legislation enforcing Section 3, because Section 5 is strictly “remedial.” City of Boerne, 521 U. S., at 520. To comply with that limitation, Congress “must tailor its legislative scheme to remedying or preventing” the specific conduct the relevant provision prohibits. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999)

[2] I find all six of these sentences (mostly) unobjectionable. In fact, I squint to wonder what is at stake.

The first is descriptively true.

The second is something recognized by even the Colorado Supreme Court, that someone (there is no object to this statement) must “ascertain” who engaged in insurrection.

The third is also true, the Constitution does empower Congress. I suppose one could read this sentence as saying, “The Constitution empowers only Congress to prescribe how those determinations should be made,” but the Court does not do so, although one might read between the lines to suggest as much.

The fourth is true, as it certainly enables Congress, it is the “relevant provision” for empowering Congress here, and “legislation” is subject to “judicial review.” I suppose one could read this sentence as saying, “The only relevant provision is Section 5, which enables Congress, subject of course to judicial review, only to pass ‘appropriate legislation’ to ‘enforce’ the Fourteenth Amendment,” but the Court does not do so, and, again, one might read between the lines to suggest as much.

The fifth is perhaps controversial, only if “critical” is interpreted as “essential” as opposed to “important,” but “critical” is an unhelpful word. (Indeed, the concurring opinion notes, “Nothing in that unequivocal bar suggests that implementing legislation enacted under Section 5 is ‘critical’ (or, for that matter, what that word means in this context).”) A different inference is that Section 5 is “critical” with respect to Section 3 because it highlights the federal role as opposed to the state role. But the inference is, admittedly, one that one must, well, infer.

[3] The sixth sentence drew a rebuke from the concurrence, “The majority further holds that any legislation to enforce this provision must prescribe certain procedures “‘tailor[ed]’” to Section 3, ruling out enforcement under general federal statutes requiring the government to comply with the law.” (Note the caveat of any legislation.)

I have a hard time finding what the concurring opinion is challenging here. Unless the concurring opinion is prepared to throw out Boerne (and, perhaps, reinvigorate other laws found unconstitutional pursuant to it), I think it’s right that any “legislation” under Section 5 implementing the Fourteenth Amendment (including enforcing Section 3) must be “tailored.” So the question is, whether enforcement of Section 3 can happen through non-Section 5 legislation, and I’m not aware of anyone who thinks otherwise (although I could be mistaken). A separate dispute might be what level of specificity Congress must have to enact a “general federal statute[]” that could affect the Fourteenth Amendment in some respect with respect to Section 5.

The hypothetical is also at a high level of abstraction, so it is hard to know what the concurring opinion is challenging. If a “general federal statute[] requiring the government to comply with the law” was cited to challenge some federal action, perhaps 5 U.S.C. § 706(2)(A), under the claim that, say, an administrative official who either had engaged in insurrection or had been appointed by a president who engaged in insurrection, perhaps we have a scenario that could apply. (Professor Marty Lederman has more thoughts on this point here.)

[4] Let’s add some other sentences outside of Part II-A.

[a] From the introduction (which Justice Barrett did not join): “Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.”

[b] From the preantepenultimate paragraph (which Justice Barrett did not join): “. . . responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.”

[c] From the antepenultimate paragraph (which justice Barrett did not join): “So far as we can tell, they object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it.”

Each of these three sentences is doing a similar thing, and each sentence, at first blush, does not appear to be doing very much (beyond the “not States” component which all justices agreed upon). The text of Section 5 reads, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” It is almost unremarkable to draft any of the three sentences above, which are almost just verbatim recitations of Section 5 with the addition of “not the States.”

Now, that said, one could find these sentences objectionable if the implication is “only” Congress may do so, as opposed to other actors in certain positions in the federal government (e.g., judges hearing a defense raised by a criminal defendant). Again, “only” or “exclusive” does not appear in these sentences.

Likewise, one could look at “the distinctive way Section 3 works” as its own unique problem. The first and second sentences listed in [1] say as much. That is, Section 3 applies to a class of people, unlike Section 1 (which applies to all citizens), so a separate (even “distinctive”) step is required, ascertaining the class of individuals covered.

[5] A major challenge is separating what the five-justice majority actually did in Part II-A of the opinion and what the concurrence said the majority did.

[a] Here’s one sentence from the concurring opinion: “Congress, the majority says, must enact legislation under Section 5 prescribing the procedures to “ ‘ “ascertain[ ] what particular individuals” ’ ” should be disqualified.”

The word “must,” however, does not appear in the majority opinion.

[b] The concurring opinion notes, “All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation.”

The majority opinion never refers to “self-executing,” or that Section 3 “depend[s] on legislation.” But it does say that when there is legislation, it must be appropriate. It also does describe Section 3 as “distinctive” because it operates on a class of individuals.

[c] The concurring opinion states that the majority has a “requirement that a Section 3 disqualification can occur only pursuant to legislation enacted for that purpose.”

The majority opinion never says “only,” and never says that legislation is “required” for Section 3.

[d] The concurring opinion claims, “It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.”

The majority opinion certainly speaks strongly about Congress and Section 5. But, from my reading, it does not appear to foreclose that avenue (e.g., when a defendant raises an argument like this), unless one begins to infer “only” into some of its statements.

[e] One more, this time from Justice Barrett’s opinion: “It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”

But, the majority never says it is the “exclusive” vehicle (although it’s not clear whether Justice Barrett is alleging that the majority is saying so, or whether she is merely identifying the issue not at stake).

[6] The concurring opinion, then, is making the case that the majority has a “strong” interpretation of congressional involvement. But any claims of a “strong” interpretation of Part II-A as suggested by the concurring opinion appears to be belied by the holdings of Part II-B of the opinion itself.

[a] Consider how the majority favorably cites the Judging Clause: “In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2.”

Judgment of qualifications under Article I is not “legislation.” And it is not by “Congress,” but by one house.

[b] The majority also explains, “We conclude that States may disqualify persons holding or attempting to hold state office.”

This, too, is not an act of Congress empowering states to do so (although, admittedly, it is restricted to state offices).

[c] (Incidentally, one could just as easily add “impeachment” here, but that, for some reason, did not make the opinion, for perhaps unfortunate contentious reasons.)

[7] In short, the majority appears never to claim that Congress is the “exclusive” or “only” body that may make adjudications (here I’ll elide “ascertainment” and “enforcement”), nor that it must do so by “legislation.”

So what, exactly, is this fight about?

It seems possible (to me) that there was a stronger version of Part II-A of the opinion. It included claims like “only” and “exclusive.” It leaned more heavily into Griffin’s Case. That sparked some disagreement from the other justices–perhaps even a partial dissent, as originally conceived.

Later in the process, there was an effort to paper over the differences in II-A, which failed. Some of the more absolutist language was removed, but the harshest criticism remained (but perhaps the word “dissent” dropped). But what is left is something muddled and middle ground-ish from the majority in II-A, without a lot of clarity over what’s at stake or how it could be applied in future cases–or even what future disputes could arise.

(I should add that while I was blogging this, which has been taking too long, Professor Marty Lederman reached a similar conclusion in Part 7 of his post here.)

[8] How to answer the three questions from the opening of this post…

(1) whether Congress (as opposed to other actors in the federal government) has the exclusive power to do so: while the concurring opinion seems to suggest this is the upshot of the majority opinion, it’s not clear to me that the majority opinion actually holds this anyway.

(2) whether Congress when enforcing Section 3 must do so pursuant to legislation: I think the answer here is no, to the extent that Article I refusal to seat members remains within its power; I assume impeachment likewise remains within its power; and I also think counting electoral votes under the Twelfth Amendment (see [10]) would fit. (Likewise, the majority appears to view it as entirely acceptable for states to do this one their own; the constraint (if any) is only for federal offices, and there is no suggestion that legislation is required for states here.)

(3) regardless, whether any congressional legislation must be appropriately “tailored” under Section 5 of the Fourteenth Amendment: I think the answer is yes, but, as I noted, unless members of the Court are prepared to throw out Boerne, this strikes me as fairly unobjectionable.

[9] The real confusion from the lack of clarity in a muddled majority opinion, heightened by the concurring opinion’s characterization of the majority opinion, is whether [8](1) here is “yes” (as the concurring opinion claims), or “possibly but likely yes” (as perhaps the tone of the majority opinion suggests), or “possibly but we will not speak more on it now” (which seems like the majority’s language if taken literally.

The tempest in a teapot, then, may well be that the majority and concurring opinion are talking past each other, perhaps about a dispute that had been papered over by the majority but hotly contested by the concurring opinion. There is no doubt, however, that even if this tempest is confined to a teapot today, it could spill over in another case if [8](1) turns from the “possibly” to the “yes” in a more concrete case.

[10] What does this mean for the Electoral Count Reform Act? For that, I’m going to have to reserve for a separate blog post.