Patterico's Pontifications


The 14th Amendment Should Be Enforced

Filed under: General — Patterico @ 1:37 pm

David Lat has a post predicting that the Supreme Court will reverse the Colorado Supreme Court on the 14th Amendment disqualification issue:

First, the Court is likely to keep Trump on the ballot—based on consequentialist concerns, and regardless of the legal merits. Some 74 million Americans voted for Trump in 2020. How will millions of them react to being told they can’t vote for him again?

As Yale law professor Samuel Moyn puts it, “it is not obvious how many would accept a Supreme Court decision that erased Trump’s name from every ballot in the land,” and “rejecting Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place.” The backlash against the justices from such a ruling is hard to imagine.

To be sure, the current Court has ignored practical consequences and public blowback before—most famously in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade. But Dobbs involved constitutional principles the conservative legal movement has cared about for decades; the same isn’t true of Anderson, arising from an obscure constitutional provision that many Americans (or even lawyers) hadn’t heard of until now.

Second, I predict the vote won’t be the 6-3, conservative-liberal split that characterizes the Court’s most controversial cases. Chief Justice John Roberts will struggle mightily to cobble together a coalition that includes at least one Democratic appointee—and at least one, Justice Elena Kagan, should be sympathetic to that goal.

Both Chief Justice Roberts and Justice Kagan are institutionalists who care deeply about the reputation of the Court. Both recognize the damage it would suffer if the outcome in this case is perceived as the product of partisan politics.

I think David is quite right that the Supreme Court will not let the ruling stand, even though I think the ruling is correct. But I have a problem with the seemingly cavalier approach that so many (not David, but many) seem to have towards the idea that you can’t enforce this provision even if, properly interpreted, it does disqualify Trump. So I left a comment on David’s Substack and thought I would reproduce it here:

I think you’re right, David, but as a lawyer I can’t help but notice that the default opinion of many (not you, necessarily, but many) seems to be as follows:

Yes, it looks like the 14th Amendment, read properly, disqualifies Trump from being elected president. Legislative history shows members of Congress discussing the fact that it applies to the presidency. Arguments about the difference between the oath taken by the president and by Congressional members and executive officers are plainly silly, as the wording of the Article II oath covers supporting the Constitution. Section 3 is obviously self-executing as much as section 1 is, and the fact that it provides a way for Congress to “remove” a disability means the disability is there until removed. Trump engaged in insurrection, as the historical interpretations cover incitement as engagement. And it’s not a political question. But . . .

But it can’t be enforced, obviously, no matter what the law actually says, because that would make people Big Mad. And make the Court look bad. And so it’s important not only Section 3 not be enforced, but that the idea of its enforcement be resoundingly rejected in a manner that appears non-partisan.

(I am not attributing this position to you because you did not really express a view on the merits. But many have.)

I just think that’s a weird position: that yes, the law is clear, but it can’t be enforced because, well, of course it can’t! And yet a lot of smart people on both sides say this. Enough that I think it is fair to call it the default position of smart lawyers.

And so we know that the Court will twist themselves (and the law) into pretzels to do the “adult” thing that preserves their perceived institutional legitimacy and keeps people from being Big Mad and maybe rioting or worse. And if that means pretending the law is something other than it is, well, we all have to be adults!

I dissent. I think the law here is clear and should be applied, and the public reaction and the institutional concerns about the Court’s legitimacy be damned.

I know my view will never win the day. But it should.

I am happy to discuss the nuts and bolts of the interpretation with you, as well as the idea that you just can’t enforce this thing no matter what they law actually says.

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