As of Monday, March 4, 2024, Part 3 of the 14th Modification of the Structure is basically a lifeless letter, a minimum of because it applies to candidates for federal workplace. Below the U.S. Supreme Court docket’s ruling that reversed the Colorado Supreme Court docket’s choice hanging Donald Trump from the state’s major poll, even insurrectionists who’ve violated their earlier oath of workplace can maintain federal workplace, until and till Congress passes particular laws to implement Part 3.
Within the aftermath of the oral argument final month, authorized observers knew with near-certainty that the Supreme Court docket was unlikely to use Part 3 to Trump. Not one of the justices appeared keen to uphold the Colorado courtroom’s ruling, and solely Justice Sonia Sotomayor gave any significant indication that she would possibly dissent. The one actual query remaining was the reasoning for the courtroom’s choice. Would the ruling be broad or slim?
A slim ruling for Trump may need held, for instance, that Colorado didn’t present him with sufficient due course of when it decided that Part 3 utilized. Or the courtroom might have held that Trump, as president, was not an “officer of the US” throughout the that means of the part. Such a ruling would have stored Trump on the poll, however it will even have stored Part 3 viable to dam insurrectionists from the Home or Senate and from all different federal workplaces.
A considerably broader ruling may need held that Trump didn’t have interaction in rebellion or insurrection or present assist and luxury to the enemies of the Structure. Such a ruling would have sharply restricted Part 3 to use virtually solely to Civil Struggle-style conflicts, an consequence at odds with the textual content and authentic public that means of the part. It’s price noting that, by not taking this path, the courtroom didn’t exonerate Trump from collaborating in an rebellion.
However as a substitute of any of those choices, the courtroom went with arguably the broadest reasoning accessible: that Part 3 isn’t self-executing, and thus has no power or impact within the absence of congressional motion. This argument is rooted in Part 5 of the modification, which states that “Congress shall have energy to implement, by acceptable laws, the provisions of this text.”
However Part 5, on its face, doesn’t give Congress unique energy to implement the modification. As Justices Elena Kagan, Sotomayor and Ketanji Brown Jackson identified in their very own separate concurring opinion, “All of the Reconstruction amendments (together with the due course of and equal safety ensures and prohibition of slavery) ‘are self-executing,’ that means that they don’t rely upon laws.” Whereas Congress might go laws to assist implement the 14th Modification, it’s not required to take action, and the 14th Modification nonetheless binds federal, state and native governments even when Congress refuses to behave.
However now Part 3 is totally different from different sections of the modification. It requires federal laws to implement its phrases, a minimum of as utilized to candidates for federal workplace. By means of inaction alone, Congress can successfully erase a part of the 14th Modification.
It’s extraordinarily tough to sq. this ruling with the textual content of Part 3. The language is clearly necessary. The primary phrases are “No individual shall be” a member of Congress or a state or federal officer if that individual has engaged in rebellion or insurrection or offered assist or consolation to the enemies of the Structure. The Part then says, “However Congress might by a vote of two-thirds of every home, take away such incapacity.”
In different phrases, the Structure imposes the incapacity, and solely a supermajority of Congress can take away it. However beneath the Supreme Court docket’s reasoning, the that means is inverted: The Structure merely permits Congress to impose the incapacity, and if Congress chooses to not enact laws imposing the part, then the incapacity doesn’t exist. The Supreme Court docket has successfully changed a really excessive bar for permitting insurrectionists into federal workplace — a supermajority vote by Congress — with the bottom bar possible: congressional inaction.
As Kagan, Sotomayor and Jackson level out, this method can also be inconsistent with the constitutional method to different {qualifications} for the presidency. We will bar people from holding workplace who’re beneath the age restrict or who don’t meet the related citizenship requirement with out congressional enforcement laws. We will implement the two-term presidential time period restrict with out congressional enforcement laws. Part 3 now stands aside not solely from the remainder of the 14th Modification, but in addition from the opposite constitutional necessities for the presidency.
In a single essential respect, the courtroom’s ruling on Monday is worse and extra consequential than the Senate’s choice to acquit Trump after his Jan. 6 impeachment trial in 2021. Impeachment is fully a political course of, and the actions of 1 Senate don’t have any bearing on the actions of future Senates. However a Supreme Court docket ruling has immense precedential energy. The courtroom’s choice is now the legislation.
It will be clearly preferable if Congress have been to go enforcement laws that established specific procedures for resolving disputes beneath Part 3, together with setting the burden of proof and creating timetables and deadlines for submitting challenges and listening to appeals. Establishing a uniform course of is healthier than residing with a patchwork of state proceedings. However the truth that Congress has not acted shouldn’t successfully erase the phrases from the constitutional web page. Chaotic enforcement of the Structure could also be suboptimal. However it’s much better than not imposing the Structure in any respect.
