No. 23-719
In the
Supreme Court of the United States
DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, et al.,
Respondents.
On Writ of Certiorari to the Supreme Court of Colorado
BRIEF OF AMICI CURIAE J. MICHAEL LUTTIG, PETER KEISLER, LARRY THOMPSON, STUART GERSON, DONALD AYER, ET AL., IN SUPPORT OF THE ANDERSON RESPONDENTS
Matthew W. Edwards
1300 19th Street NW, Suite 300
Washington, DC 20036
Nancy A. Temple
Katten & Temple, LLP
209 S. LaSalle Street, Suite 950
Chicago, IL 60604
Richard D. Bernstein
Counsel of Record
1875 K Street NW, Suite 100
Washington, DC 20006
(301) 775-2064
rbernsteinlaw@gmail.com
Counsel for Amici Curiae
January 29, 2024
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1
INTRODUCTION A ND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. STATE COURTS AND THIS COURT HAVE THE JUDICIAL POWER TO DECIDE A PRESIDENTIAL DISQUALIFICATION DISPUTE. . . . . . . . . . . .
A. The Electors Clause Allocates This Power To The States, Subject To This Court’s Article III Judicial Review. . . . . . . . . . . . . . 3
B. No Amendment Repeals This Allocation Of Judicial Power. . . . . . . . . . . . . . . . . . . . . . . 8
1. Section 5 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . 8
2. Section 3 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . 10
3. The Twelfth Amendment . . . . . . . . . . . 13
4. The Twentieth Amendment . . . . . . . . . 15
C. The Political Question Doctrine Does Not Apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Federalism And Separation Of Powers Support Traditional Court Adjudication Rather Than Sole, Unreviewable Congressional Power. . . . . . . . . . . . . . . . . . . 16
II. THE FAIR MEANING OF SECTION 3 DISQUALIFIES FORMER PRESIDENT TRUMP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Section 3 Must Be Accorded Its Fair Meaning, Not A Narrow Construction . . . 19
B. The “President Of The United States” Is An “[O]fficer of the United States” . . . . 21
C. The January 6, 2021 Armed Attempt To Prevent The Peaceful Transfer Of Executive Power Was An “Insurrection . . . Against The” Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 24
D. Mr. Trump “Engaged In” The Insurrection . . . . . . . . . . . . . . . . . . . . . . . . . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
TABLE OF APPENDICES
APPENDIX A — LIST OF AMICI CURIAE . . . . . . . 1a
Amy Warwick (The Prize Cases), 67 U.S. 635 (1862) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929) . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 15
Brandbenburg v. Ohio, 395 U.S. 444 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Bush v. Gore, 531 U.S. 98 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 16
Chiafalo v. Washington, 140 S. Ct. 2316 (2020) . . . . . . . . . . . . . . . . . 6, 11, 13, 26
Cooper v. Aaron, 358 U.S. 1 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012) . . . . . . . . . . . . . . . . . 6
Cited Authorities
In re Canvass of Absentee and Mail-In Ballots of Nov. 3, 2020 Gen. Election, No. 31 EAP 2020, 241 A.3d 1058 (Pa. Nov. 23, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
In re Canvassing Observation, 241 A.3d 339 (Pa. Nov. 17, 2020) . . . . . . . . . . . . . . . . 30
In re Charge to Grand-Jury Treason, 30 F. Cas. 1047 (C.C.E.D. Pa. 1851) . . . . . . . . . . . . . . 29
In re Griffin, 11 F. Cas. 7 (Cir. Ct. D. Va. 1869) . . . . . . . . . . . . . . . . 9
Johnson v. Sec’y of State, 951 N.W.2d 310 (Mich. Dec. 9, 2020) . . . . . . . . . . . . . 29
Law v. Whitmer, No. 82178, 477 P.3d 1124 (Nev. Dec. 8, 2020) . . . . . . 30
McPherson v. Blacker, 146 U.S. 1 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
New York v. United States, 505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Northern Sec. Corp v. United States, 193 U.S. 197 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 26
Shelby County v. Holder, 570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Texas v. Pennsylvania, 141 S. Ct. 1230 (Dec. 11, 2020) . . . . . . . . . . . . . . . . . . 29
Thomas v. Loney, 134 U.S. 372 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trump v. Biden, 951 N.W.2d 568 (Wis. Dec. 14, 2020) . . . . . . . . . . . . . 29
United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) . . . . . . . . . . . . . . . . . 25
Ward v. Jackson, No. CV-20-0343, 2020 WL 8617817 (Ariz. Dec. 8, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Statutes 3 U.S.C. § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18 U.S.C. § 2383 . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 16
28 U.S.C. § 453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
U.S. Const. amend. XII . . . . . . . . . . . . . . . . . . . . . . . . 1, 13
U.S. Const. amend XIV, § 3 . . . . . . . . . . . 2, 6, 7, 10, 11, 19
U.S. Const. amend. XX . . . . . . . . . . . . . . . . . . . . . . . . 1, 15
U.S. Const. amend. XX, § 3 . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Const. art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
U.S. Const. art. I § 2, cl. 5 . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art. I § 3, cl. 6 . . . . . . . . . . . . . . . . . . . . . . . 4, 9
U.S. Const. art I, § 4 cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Const. art I, § 5 . . . . . . . . . . . . . . . . 4, 5, 6, 10, 14, 15
U.S. Const. art I, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Const. art I, § 8 cl. 17 . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art. II, § 1, cl. 1 . . . . . . . . . . . . . . . . 2, 6, 21, 24
U.S. Const. art. II, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . 14, 18
U.S. Const. art. II, § 1, cl. 3 . . . . . . . . . . . . . . . . . . . . 14, 25
U.S. Const. art. III, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Const. art. III, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . 19
Other Sources
R. Bernstein, “Lots of People Are Disqualified from Becoming President,” Atlantic (Feb. 4, 2021) https://www.theatlantic.com/ideas/ archive/2021/02/trump-disqualificationpresident/617908/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Samuel Bray, “Officer of the United States” in Context, Reason (Jan. 22, 2024) https:// reason.com/volokh/2024/01/22/officer-of-theunited-states-in-context/. . . . . . . . . . . . . . . . . . . . . . . 23
Chronology of Events Leading to Secession Crisis, American Historical Association https://www. historians.org/teaching-and-learning/teachingresources-for-historians/sixteen-monthsto-sumter/chronology . . . . . . . . . . . . . . . . . . . . . . . . . 27
Cong. Globe, 39th Cong., 1st Sess. 2918 (May 31, 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
John Eastman’s Second Memo on “January 6 Scenario,” Wash. Post (Oct. 29, 2021), https://www. washingtonpost.com/context/john-eastman-ssecond-memo-on-january-6-scenario/b3fd2b0af931-4e0c-8bac-c82f13c2dd6f/ . . . . . . . . . . . . . . . . . . 15
J. Elliot, The Debates in the Several State Conventions (J. Elliot ed., 2d ed. 1836) . . . . . . . . . . . 25
J. Heilpern & M. Worley, Evidence that the President Is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment (Jan. 1, 2024) https://papers.ssrn.com/sol3/ Delivery.cfm/SSRN_ID4681108_code2677999. pdf?abstractid=4681108&mirid=1 . . . . . . . . . . . . . . 22
S. Johnson, A Dictionary of the English Language (4th ed. 1773) . . . . . . . . . . . . . . . . . . . . . . . 13
P. Keisler & R. Bernstein, Freedom of Speech Doesn’t Mean What Trump’s Lawyers Want It to Mean, Atlantic (Feb. 8, 2021) https://www.theatlantic. com/ideas/archive/2021/02/first-amendmentno-defense-against-impeachment/617962/ . . . . . . . . 32
J. Kent, Commentaries on American Law (11th ed. 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
James Madison, Federalist No. 48 . . . . . . . . . . . . . . . . . 17
James Madison, Federalist No. 78 . . . . . . . . . . . . . . . . . 17
J. McPherson, Battle Cry of Freedom (1988) . . 20, 27, 28
Michael Pence, Vice President’s Letter to Congress (January 6, 2021), https://int. nyt.com/data/documenttools/pence-letteron-vp-and-counting-electoral-votes/ 9d6f117b6b98d66f/full.pdf . . . . . . . . . . . . . . . . . . . . . 23
R. Parloff, What Scalia Thought About Whether Presidents Are “Officers of the United States,” Lawfare (Jan. 24, 2024) https:// http://www.lawfaremedia.org/article/wha ... residents- are-officers-of-the-united-states . . . . . . . . . . . . . . . . 22
A. Scalia & B. Garner, Reading Law (2012) . . . . . . 19, 23
Ilya Somin, Insurrection, Rebellion, and January 6: Rejoinder to Steve Calabresi, Reason (Jan. 6, 2024) https://reason.com/ volokh/2024/01/06/insurrection-rebellionand-january-6-rejoinder-to-steve-calabresi/ ?itm_source=parsely-api . . . . . . . . . . . . . . . . . . . . . . 25
South Carolina convention, Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union https://www.learningforjustice. org/classroom-resources/texts/hard-history/ declaration-of-the-immediate-causes-whichinduce-and-justify-secession . . . . . . . . . . . . . . . . . . . 27
2 J. Story, Commentaries on the Constitution § 831 (1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
J. Story, Commentaries on the Constitution of the United States § 423 at 300 (2d ed. 1858) . . . . . . 19
St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, App. 200-205 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Reconstruction Acts, 12 Op. Att’y Gen. 141 (1867) . . . . . . . . . . . . . . . . . . . . 29
The Reconstruction Acts, 12 Op. Att’y Gen. 182 (1867) . . . . . . . . . . . . . . . . . . . . 29
Washington’s Farewell Address (1796) https:// http://www.govinfo.gov/content/pkg/GPO- ... sdoc21.pdf . . . . . . . 26
INTEREST OF AMICI CURIAE
The amici listed in Appendix A submit this brief. Amici include former officials who worked in the last six Republican administrations, senior officials in the White House and Department of Justice, and others who support a strong, elected Presidency.1 Reflecting their experience, amici have an interest in defending the peaceful transfer of power to a newly-elected President that is required by Article II and the Twelfth and Twentieth Amendments and is protected against insurrection by Section 3 of the Fourteenth Amendment. Amici speak only for themselves personally and not for any entity or other person.
INTRODUCTION AND SUMMARY OF ARGUMENT
This brief focuses on two textualist points. First, it would violate the rule of law and textualism for this Court to create an off-ramp to avoid adjudicating whether Mr. Trump is disqualified. The power to decide a dispute about a presidential candidate’s constitutional qualifications is a judicial power that has been vested by the Electors Clause initially in the States, and by Article III’s grant of appellate jurisdiction ultimately in this Court. Section 5 of the Fourteenth Amendment merely gives Congress power to legislate a judicial enforcement mechanism in addition to this pre-existing judicial power of the States and this Court.
Mr. Trump does not argue that the Constitution gives Congress judicial power over a presidential qualifications dispute. Section 5 of Article I gives Congress the power only to “be the Judge of the . . . Qualifications of its own Members.” In contrast, Section 3 of the Fourteenth Amendment merely checks the judicial power of the courts by giving Congress the power by two-thirds vote to remove, for any reason, disqualification under Section 3, even after it has been judicially adjudicated.
Second, the terms of Section 3 of the Fourteenth Amendment disqualify Mr. Trump. The Court should heed the warning of Justice Holmes that cases of “immediate overwhelming interest” often “make bad law.” Northern Sec. Corp. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting). Particularly because Section 3 emerged from the hallowed ground of the Civil War, this Court must accord Section 3 its fair meaning, not a narrow construction. Mr. Trump was “President of the United States.” U.S. Const. art. II, § 1, cl. 1. He never disputes that the President is an “officer.” It follows, as the Fourteenth Amendment generation understood, that the “President of the United States” is an “officer of the United States.” Mr. Trump incited, and therefore engaged in, an armed insurrection against the Constitution’s express and foundational mandates that require the peaceful transfer of executive power to a newly-elected President. In doing so, Mr. Trump disqualified himself under Section 3.
ARGUMENT
I. STATE COURTS AND THIS COURT HAVE THE JUDICIAL POWER TO DECIDE A PRESIDENTIAL DISQUALIFICATION DISPUTE.
Resolving individual disputes of a presidential candidate’s qualifications is an exercise of judicial power. Under federalism and separation of powers, state and federal courts exercise judicial power, except for Article I’s two grants of enumerated judicial powers to Congress. Neither of those grants even arguably applies here. And no constitutional amendment changes the allocation of judicial power here.
A. The Electors Clause Allocates This Power To The States, Subject To This Court’s Article III Judicial Review.
The Constitution limits Congress to the two judicial powers enumerated in Article I. The founding generation understood this. The oft-cited treatise of St. George Tucker explained that the Constitution vested
[t]he judicial powers (except in the cases particularly enumerated in the first article) in the courts; the word the, used in defining the powers of the executive, and of the judiciary, is, with these exceptions, co-extensive in its signification with the word all: . . . .
[Congress] is neither established as [a judicial court] by the constitution (except in respect to its own members,) nor has it been, nor can it be established by authority of congress; for all the courts of the United States must be composed of judges commissioned by the president of the United States, and holding their offices during good behaviour, and not by the unstable tenure of biennial elections.
St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, App. 200-205 (1803) (first and last emphasis added).
The constitutional provisions on impeachment provide one of only two “particularly enumerated” grants of judicial power to Congress. Article I, section 3, clause 6 states: “The Senate shall have the sole Power to try all Impeachments.” (Emphasis added). Clause 6 also refers to the person subject to impeachment being “convicted” by “the Concurrence of two thirds of the Members present.” And the next clause refers to “Judgment in Cases of Impeachment.” Article II, Section 4, in turn subjects to Impeachment “[t]he President, the Vice President, and all civil Officers of the United States.”
In contrast, in the second grant of an enumerated judicial power to Congress, the Constitution gives Congress no judicial power concerning the President, the Vice President, and all civil officers. This second grant is in Section 5 of Article I: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members[.]” (Emphasis added). Justice Story explained the reason that this judicial power concerning “Members” was given to Congress: “If lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger.” 2 J. Story, Commentaries on the Constitution § 831 (1833).
As the text of Article I, Section 5 confirms, this rationale does not support any power of Congress to “be the Judge of the . . . Qualifications of” the President or any officer of the United States. The founding generation would have considered it unthinkable to give Congress an unreviewable power, by a bare majority, to disqualify a President or a cabinet member when the facts or legal principles are in dispute. As James Madison explained in Federalist No. 48: “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” Madison warned against “legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.” He thus stated that the Constitution did not make “[t]he judiciary and executive members . . . dependent on the legislative . . . for their continuance in” office. Id. (emphasis added). “An ELECTIVE DESPOTISM was not the government we fought for;” but rather the founding generation fought for a government with the “effectual[] check[s] and restraint[s]” of separation of powers. Id.
In Section 5 of Article I, however, the word “Judge” does reflect the founding generation’s understanding that it is an exercise of judicial power to decide disputed factual and legal questions about whether a particular person is qualified to hold office. Accordingly, Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929), holds that when a house of Congress exercises power over a dispute about “elections, returns, and qualifications” of that house’s members, that house “acts as a judicial tribunal.” Id. at 616. The power to decide such a dispute is “judicial in character,” and its exercise “necessarily involves the ascertainment of facts . . . to determine the facts and to apply the appropriate rules of law, and, finally, to render a judgment . . . .” Id. at 613. Before Barry, Thomas v. Loney, 134 U.S. 372 (1890), also had held that Section 5 of Article 1 gives each House “judicial power” and each House acts as a “judicial tribunal.” Id. at 374- 75. Although Barry and Loney involved elections, their rationale expressly applied to qualifications as well. As it must, because “Judge” in Article I, Section 5 applies to “Elections, Returns and Qualifications.”
In stark contrast to congressional qualifications, the Constitution confers the judicial power to adjudicate presidential qualifications first on the state officials and courts designated by state law, and ultimately on the Supreme Court. To start, the Electors Clause in Article II, Section 1 confers power on each State to “direct” the “Manner” of “appoint[ing]” presidential electors. Each state’s “far-reaching authority over presidential electors,” Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020), includes the “power to impose conditions on the appointment of electors,” id. at 2324 n.6. Thus, "a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” Hassan v. Colorado, 495 F. App’x 947, 948 (10th Cir. 2012) (Gorsuch, J.) (emphasis added). The Electors Clause also gives each state the power to authorize state officials and state courts “to oversee election disputes,” Bush v. Gore, 531 U.S. 98, 113-14 (2000) (Rehnquist, C.J., concurring). A dispute over a presidential candidate’s qualifications under federal law is certainly one very important kind of presidential election dispute.
Even without the Electors Clause, as a matter of federalism, generally state law may authorize state courts to interpret and apply “federal law,” even when Congress has not created a justiciable cause of action. ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989). The only exception is when the Constitution or a valid federal statute contains “a provision for exclusive federal jurisdiction.” Id.
Section 2 of Article III of the Constitution directly gives the Supreme Court appellate jurisdiction, “both as to law and fact,” of “all cases, in law and equity, arising under this Constitution, [and] the laws of the United States,” except in cases where this Court has original jurisdiction. The ubiquitous “all cases” include disputes in state court raising federal issues about a presidential candidate’s qualifications under the Constitution.2 As Bush v. Gore held, when disputes arise relating to a presidential election, after initial resolution by the state officials or state courts designated by state law, it is “our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” 531 U.S. at 111 (per curiam) (emphasis added). After that resolution, the Constitution’s Supremacy Clause mandates that all state legislatures, officials, and courts abide by final Supreme Court rulings on issues of federal law. Cooper v. Aaron, 358 U.S. 1, 4, 18-20 (1958).
To summarize, under the Electors Clause and federalism, state courts and election officials initially have authority to adjudicate whether a candidate for President is disqualified by the Constitution. Next, under Article III’s authorization of appellate jurisdiction and 28 U.S.C. § 1257, this Court reviews such a ruling and makes the final judicial decision whether a presidential candidate is disqualified. Finally, under the Supremacy Clause, the Supreme Court’s ruling is binding in all 50 States. That refutes any suggestion that only Congress can prevent inconsistent rulings between courts in different states on whether a presidential candidate is disqualified.
B. No Amendment Repeals This Allocation Of Judicial Power.
Nothing in any constitutional amendment limits the pre-existing power of state courts and ultimately the Supreme Court to adjudicate a presidential qualifications dispute before the election. And Mr. Trump does not argue that any constitutional amendment confers a power on Congress to adjudicate this case of disputed presidential qualifications.
1. Section 5 of the Fourteenth Amendment: Section 5 states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” (Emphasis added). Nothing in these fifteen words deprives the states of their pre-existing power, subject to this Court’s review, to adjudicate a presidential candidate’s constitutional qualifications. See Part I.A., supra. Section 5 says “power,” not “the power”—much less “exclusive” or “sole power.” Compare Art. I, § 2, cl. 5, and § 3, cl. 6. (“the sole Power”); Art. I, § 8, cl. 17 (“exclusive Legislation”). Nor does Section 5 state “No State shall” as Section 1 does. See also Art. I, § 10 (“No State shall” used for more than 15 prohibitions). Nor does one word in Section 5 permit any distinction between Congress’s power to enforce Section 3 versus Section 1. Rather, as to Section 3 and Section 1, Section 5 gives Congress “power” to legislate an additional enforcement mechanism, and does not negate the preexisting adjudicatory power of state courts, subject to Supreme Court review, to enforce the Constitution.
For similar reasons, Mr. Trump misplaces reliance on In re Griffin, 11 F. Cas. 7 (Cir. Ct. D. Va. 1869). Nothing in Griffin involved, addressed, or limited either a state court’s pre-existing power under the Electors Clause to decide a presidential qualifications dispute or this Court’s Article III appellate jurisdiction over such a state court decision.
Mr. Trump is also wrong that 18 U.S.C. § 2383 “is the exclusive means of enforcing section 3.” Pet’r’s Br. at 40. Like most criminal statutes, Section 2383 contains nothing like an exclusive jurisdiction provision. And it was originally adopted in the Second Confiscation Act of 1862, 12 Stat. 589, before the Fourteenth Amendment was enacted.
Moreover, exclusive federal court jurisdiction concerning who is eligible to be elected President would be in tension with the powers that the Electors Clause confers on States, but not Congress. The Electors Clause contrasts with the Elections Clause in Article I, Section 4, Clause 1. The Elections Clause gives Congress power to “make or alter . . . regulations” on the “Manner” of holding congressional elections, but the Electors Clause gives Congress no such power concerning presidential elections. Shelby County v. Holder, 570 U.S. 529 (2013), held that Congress’s power under Section 2 of the Fifteenth Amendment to enact “appropriate legislation” does not authorize legislation that violates federalism. Id. at 538, 543. For similar reasons, it would not be “appropriate legislation” under Section 5 of the Fourteenth Amendment for a statute to nullify a state court’s traditional power to decide a presidential qualification dispute, subject to Supreme Court review.
Finally, Mr. Trump does not argue that Section 5 confers any judicial power on Congress. “[L]egislation” is a product of legislative power, not judicial power. And, unlike an adjudication, the Constitution, in Article 1, Section 7, Clause 2, requires that all legislation be presented to the President for signature or veto.
2. Section 3 of the Fourteenth Amendment: The last sentence of Section 3 reads: “But Congress may by a vote of two-thirds of each House, remove such disability.” The words “[ b]ut” and “remove” connote that the disability existed before Congress votes.
Mr. Trump does not argue that the last sentence of Section 3 confers a power on Congress to adjudicate whether there was a disability before its removal. See Pet’r’s Br. at 41-42. Indeed, “vote” to “remove such disability” in Section 3 stands in stark contrast to “Judge” in Article I, Section 5 and “try,” “convicted,” and “Judgment” in Article I, Section 3, clauses 6 and 7. See supra, at pp. 4-6. Two-thirds of Congress may “vote” to remove a pre-existing disability for any reason, including that the disqualified person has reformed or for pure politics. And Congress need not hear evidence or otherwise satisfy procedural due process.
Mr. Trump instead argues that the combination in Section 3 of the phrase “hold any office” and Congress’s power by two-thirds “vote” to “remove such disability” nullifies a state court’s power to adjudicate (subject to this Court’s review) a Section 3 presidential qualification dispute before election day. Pet’r’s Br. at 41-46. This is wrong. To start, courts may adjudicate before election day three other presidential disqualifications that use “hold” or similar words. First, a criminal conviction under 18 U.S.C. § 2383 for insurrection renders a person “incapable of holding any office under the United States.” Neither Mr. Trump nor anyone else suggests that such a federal criminal case cannot be adjudicated before election day.
Second, the Twenty-Second Amendment states, “[n]o person shall be elected to the office of the President more than twice.” A President is “elected” under Article III, Section 1 and the Twelfth Amendment no earlier than when “[t]he Electors . . . vote by ballot for President” in mid-December. See Chiafalo, 140 S. Ct. at 2321, 2325 (the electors “do indeed elect a President”). Obviously, the Twenty-Second Amendment does not render a state court powerless before election day to prevent Barack Obama and George W. Bush from running on that state’s ballot for a third term.
Third, Article I, Section 3, Clause 7 gives the Senate power, after impeachment and conviction, to enter a judgment of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” (Emphasis added.) Of course, a state may give its courts power to enforce this “disqualification to hold” by barring a disqualified person from running.
Equally unavailing is Mr. Trump’s reliance on the fanciful possibility that Congress by two-thirds vote might remove his disability. This does not deprive the courts of their traditional ability to adjudicate a disqualification before election day. In the other instances discussed above—the bars of 18 U.S.C. § 2383, the Twenty-Second Amendment, and disqualification by the Senate—the candidate could assert an equally unlikely fantasy that two-thirds of Congress might propose and the States might ratify a constitutional amendment that removes the disability.
Rather, the words “remove such disability” in the Fourteenth Amendment confirm that the candidate is currently disqualified and will remain disqualified, unless and until there is an affirmative vote by two-thirds of Congress to “remove” that disqualification. It makes no sense to put off the judicial determination of whether someone is qualified, and the potential subsequent removal of the disability by Congress, until after the election has been run. That would deprive voters of the ability to make a truly informed decision, because they could not know if they were voting for someone who cannot serve. And it would risk chaos as courts litigate whether a newly-inaugurated President is disqualified at the same time the country needs a President to be indisputably occupying the office and making enormously consequential decisions—including as commander-in-chief, appointer of cabinet members, leader of the executive branch, vetoer of bills, etc. It is difficult to believe that the framers of the Fourteenth Amendment added Section 3 intending that the new clause operate in a way that deprives both voters of the ability to make an informed decision and ultimately-eligible Presidents of the ability to govern effectively from the outset.
3. The Twelfth Amendment: Mr. Trump does not argue that the Twelfth Amendment deprives state courts or this Court of jurisdiction to decide this case or gives Congress power to do so. The Twelfth Amendment left the Electors Clause intact. See McPherson v. Blacker, 146 U.S. 1, 26 (1892). Under the Electors Clause, each state “exclusively,” id. at 27, makes the “apportionment of responsibility” as to which bodies “oversee [presidential] election disputes.” Bush v. Gore, 531 U.S. at 113-14 (Rehnquist, C.J., concurring). Here, the Colorado Supreme Court properly ruled that Colorado’s statutes apportioned the authority to decide this presidential disqualification dispute to Colorado’s Secretary of State and state courts, subject to this Court’s review.
The Twelfth Amendment vests no power in Congress to judge a dispute about a presidential candidate’s qualifications if, as here, (1) there are disputed facts or disputed legal questions and (2) state courts, subject to this Court’s review, have the power to adjudicate the dispute. The Twelfth Amendment repeats the words in the original Article II, Section 1, Clause 3, that after the certificates of electoral votes are opened, “the Votes shall then be counted.” The phrase “shall then be counted” refers to calculating. See S. Johnson, A Dictionary of the English Language (4th ed. 1773) (the verb “count” means “To number; to tell.”). “[S]hall then be counted” does not suggest a power of Congress to act as a court that substitutes for, or overrides, state courts or this Court.
The phrase “shall then be counted” contrasts sharply with the express power to “Judge” given by Article I, Section 5 to Congress but concerning only congressional elections and qualifications. “[S]hall then be counted” also contrasts with the broader word “determine” that Article II, Section 1, Clause 4 employed to give Congress other powers concerning a state’s conducting of a presidential election. Clause 4 provides: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes . . . .” Article II, Section 1, Clause 3, would not have used, and the Twelfth Amendment would not have repeated, the very different and narrower word “counted” to give Congress judicial powers to act as a substitute court for, or override, state courts or this Court concerning disputed presidential election results and qualifications.
The Court should ensure that nothing in its decision uses the Twelfth Amendment, or 3 U.S.C. § 15, to undermine the authority of each State, through its courts and election officials, to resolve disputes arising in connection with a presidential election, subject to review by this Court, rather than Congress. Only three years ago, Mr. Trump and his former counsel argued that the Twelfth Amendment conveys to the Vice President the ultimate power to override state court decisions and adjudicate who won a state’s electoral votes. See John Eastman’s Second Memo on “January 6 Scenario,” Wash. Post (Oct. 29, 2021) (linking to memo).3 Let’s not go anywhere near there again.
4. The Twentieth Amendment: Mr. Trump’s brief does not argue that the Twentieth Amendment has any bearing on this case. Section 3 of the Twentieth Amendment does not restrict the pre-existing power of state courts and the Supreme Court to adjudicate a presidential qualification dispute before election day. Nor does it assign any judicial power to Congress. Instead, it specifies that, on inauguration day, “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” The use of “shall have failed” connotes that the putative President has failed to qualify without Congress doing anything. Again, Congress is given no power to “try” and “Judge” or anything that suggests a power to adjudicate. Moreover, the Twentieth Amendment was passed by Congress in March 1932, only three years after Barry v. United States ex rel. Cunningham, supra. If the Twentieth Amendment’s framers had intended to expand Congress’s limited judicial power to “Judge” beyond the “Qualifications of its own Members,” U.S. Const. art. I, § 5, to also include judicial power to judge the disputed qualifications of the President and Vice President, surely the Twentieth Amendment would say so expressly.