Today the Supreme Court decided Trump v. Anderson. The majority, in a per curiam opinion, makes four primary moves.
First, the Court agrees with Chief Justice Chase's opinion in Griffin's Case (1869) that Congress must establish the procedures to enforce Section 3:
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. App. to Pet. for Cert. 53a (quoting Griffin's Case, 11 F. Cas. 7, 26 (No. 5,815) (CC Va. 1869) (Chase, Circuit Justice)). Chase went on to explain that "[t]o accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable." Id., at 26.
Second, the States have the reserved power to disqualify state officials, but States have no power to disqualify federal positions:
We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency. . . . Although the Fourteenth Amendment restricts state power, nothing in it plainly withdraws from the States this traditional authority. And after ratification of the Fourteenth Amendment, States used this authority to disqualify state officers in accordance with state statutes. See, e.g., Worthy v. Barrett, 63 N. C. 199, 200, 204 (1869) (elected county sheriff); State ex rel. Sandlin v. Watkins, 21 La. Ann. 631, 631–633 (1869 )(state judge). Such power over governance, however, does not extend to federal officeholders and candidates.
Third, legislation to enforce Section 3 must satisfy the "congruence and proportionality" test from City of Boerne v. Flores. We think the Court is suggesting that the Electoral Count Reform Act does not meet this test. And the Court suggested that Section 2383 would be valid enforcement legislation.
Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect "congruence and proportionality" between preventing or remedying that conduct "and the means adopted to that end." City of Boerne, 521 U. S., at 520. Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3. See Tr. of Oral Arg. 123.
Fourth, under Anderson v. Celebrezze, there are distinct interests in having a uniform system for electing the President.
Finally, state enforcement of Section 3 with respect to the Presidency would raise heightened concerns. "[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest." Anderson v. Celebrezze, 460 U. S. 780, 794–795 (1983) (footnote omitted). But state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that "the President . . . represent[s] all the voters in the Nation." Id., at 795 (emphasis added). Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification determinations.
There is much more to say about this case. Here we offer several preliminary observations.
First, the Court agrees with Chief Justice Chase's decision in Griffin's Case. Indeed, the Court arguably amplifies Chase's reasoning. From the very beginning, we have led off with Chase's opinion. We wrote about it in the New York Times regarding Madison Cawthorn. It was the lead argument in our article, Sweeping and Forcing. And it was Roman Numeral I in every amicus brief we filed. All the efforts by legal professors, academics in other fields, and others to attack Chase and his credibility have failed. The most that the Sotomayor-Kagan-Jackson opinion can summon to criticize Chase was to point out that Trump's counsel, Jonathan Mitchell, "distanced himself from fully embracing" Griffin's Case. (Blackman addressed Mitchell's discussion of Chase and Griffin's Case here.) Chase and his legal craftsmanship has been again vindicated, as it has been on many occasions in the past.
Second, the Court agreed with our position that state positions stand in a different position than federal positions. In Sweeping and Forcing, we argued that Worthy v. Barrett and Sandlin v. Watkins can be explained as enforcing Section 3 against state officials. Law professors roundly rejected this distinction. Indeed, Trump's own counsel resisted this argument. Justice Barrett asked Mitchell, "Why don't you have an argument that the Constitution of its own force, that Section 3 of its own force, preempts the state's ability not necessarily, I think, not, to enforce Section 3 against its own officers but against federal officers, like in a Tarble's Case kind of way." Mitchell responded, "there could also be an argument that's more limited. You're suggesting there may be a barrier under the Constitution to a state legislating an enforcement mechanism for Section 3 specific to federal officers." Justice Barrett responded incredulously: "Well, why aren't you making those arguments?" (Blackman discussed that colloquy here.) In fact, it was this argument carried the day.
Third, none of the Justices addressed the "office" and "officer"-related arguments. Perhaps in several decades, when the papers are released, we will gain some insights into how this opinion came together in its final form. Discussions of the Constitution's and Section 3's "office"- and "officer"-language led to probing questioning by Justices Jackson and Gorsuch during oral argument.
Fourth, the various opinions did not cite any law review articles, amicus briefs, blog posts, or social media. But it was decided, after briefing and after oral argument. In due time, we can explore how so many, perhaps a majority of legal academics, got this case so very wrong.
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