Trump v. Anderson.
I read it. I hate it. It's wrong.
Don't believe the reporting that it is a "unanimous" opinion, it is not. As the Sotomayor concurrence notes,
the majority answered a question not before it (again) to
expand its authority and diminish the authority of other courts. It's entirely a pro-Trump, anti-Constitution opinion.
The majority, following its wont, went well beyond the case to pursue its ideological agenda. It precluded
federal courts from making factual determinations about disqualification. It essentially overruled,
sub silentio, dozens of precedents that established the 14th Amendment as
?self-executing. Without acknowledging it, this is an election case and another nail in the court-built coffin to bury the Voting Rights Act and other anti-discrimination legislation. It is another example of the Court majority cabal of arrogating to itself power to control the country and undercut the other branches of government.
Anyone with a reverence for the Constitution should be very concerned.
One should not be under any illusion that the current Supreme Court majority is interested in "States' Rights". That is a convenient fig leaf when they want to reduce federal authority, as in
Dobbs. But here, where a State has
express constitutional authority, that is inconvenient. Instead, the conservatives turn the principle on its head, "Section 3 of the Amendment likewise
restricts state autonomy, but through different means." This is Chief Justice Roberts' contribution. "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."
The
Per Curiam Opinion (note, Justice Thomas
did not recuse) waxes on about "the Fourteenth Amendment’s rebalancing of federal and state power" and that "Granting the States that authority would invert the Fourteenth Amendment’s rebalancing". Don't expect this encomium to arise in any other context, especially as it is contrary to decisions such as
Shelby County, Bruen, and Dobbs.That should have ended the case, as the concurring Justices opine. But, it didn't. The reason it didn't is because that left the
federal courts available to seek enforcement of the Constitution, and that would have disrupted the cabal's plans.
"Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime." [Note: The Court referenced the repeal of the statute, but I cannot find an online reference to the original language of the statute, only a reference to the section repealed.] Thus, the Court reaches the determination, "For the reasons given, responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States." This is not the unanimous view. But they go on: "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." Here, the majority is asserting, in no uncertain terms, the Court's authority to
limit Congress' authority to enforce the disqualification clause. That the supposedly "unanimous" decision is clearly not, there is a curious paragraph at the end of the
Per Curiam Opinion: "All nine Members of the Court agree with that result. Our colleagues writing separately further agree with many of the reasons this opinion provides for reaching it. See post, Part I (joint opinion of SOTOMAYOR, KAGAN, and JACKSON, JJ.); see also post, p. 1 (opinion of BARRETT, J.). 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. These are not the only reasons the States lack power to enforce this particular constitutional provision with respect to federal offices. But they are important ones, and it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches."
What were those objections? Justice Barrett was succinct: "I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that."
Justice Sotomayor is more specific: "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 348 (2022) (ROBERTS, C. J., concurring in judgment).
....
Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future.
....
five Justices go on.
They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Ante, at 13. Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. (
Emphasis mine) The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment."
Here I am completely in accord with Justice Sotomayor's concurrence: "the Court continues on to resolve questions not before us." Sound familiar?
1) "In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed."
2) "Congress, the majority says, must enact legislation under Section 5 prescribing the procedures to “‘“ascertain[] what particular individuals”’” should be disqualified."
3) "These musings are as inadequately supported as they are gratuitous."
Substantively, she is even more acidic: "To start, nothing in Section 3’s text supports the majority’s view of how federal disqualification efforts must operate. Section 3 states simply that “[n]o person shall” hold certain positions and offices if they are oath breaking insurrectionists. Amdt. 14. 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). Ante, at 5. In fact, the text cuts the opposite way. Section 3 provides that when an oath breaking insurrectionist is disqualified, “Congress may by a vote of two thirds of each House, remove such disability.” It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation."
Check."Similarly, nothing else in the rest of the Fourteenth Amendment supports the majority’s view. Section 5 gives Congress the “power to enforce [the Amendment] by appropriate legislation.” Remedial legislation of any kind, however, is not required. 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. City of Boerne v. Flores, 521 U. S. 507, 524 (1997); see Civil Rights Cases, 109 U. S. 3, 20 (1883). Similarly, other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation." and,
Mate."Ultimately, under the guise of providing a more “complete explanation for the judgment,” ante, at 13, the majority resolves many unsettled questions about Section 3. 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 further holds that any legislation to enforce this provision must prescribe certain procedures “‘tailor[ed]’” to Section 3, ante, at 10, ruling out enforcement under general federal statutes requiring the government to comply with the law. By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.
The implications are horrendous.
