The Supreme Court Gives Section 3 the Snip

...but, despite their best efforts, the Trump Disqualification Suit still has a path.

Due to my haste to get this published the same day as the opinion, I did not subject this post to my usual editing standards. Please forgive any typos, and please point out and criticize any stupid arguments or incoherent rambles.

The legend of Galileo is mostly nonsense, but it makes great television: the noble Scientist goes before a dimly-lit tribunal of the Inquisition, bearing entire books full of his proofs that the Earth goes around the sun. The Inquisition listens to his science-talk, but has long since decided the case on political and theological grounds. They rule that the Earth does not move, find the Scientist guilty of heresy, and demand he recant or they will have him burned to death. The Scientist, dejected, signs the paper officially recanting his position, and so the Inquisition “mercifully” sentences him to lifelong silence and house arrest instead.

As the bailiff escorts the Scientist out the door to his forced retirement, he cries out, defiant, “And yet it moves!”

So anyway…

The Supreme Court issued a unanimous ruling this morning, the decisive moment in the Trump Disqualification Suits that I’ve been writing about for months. As I predicted after oral arguments, Mr. Trump defeated the Constitution here. The Supremes decided this case on a single, narrow ground: the state of Colorado has no power to enforce Section Three of the Fourteenth Amendment against candidates for federal office. Therefore, the Court held 9-0, former President Trump cannot be removed from state presidential ballots.

I wrote a layman’s introduction to states’ Section Three enforcement power called “Saying the Magic Words.”¹ My article is actually longer than today’s actual decision, but I think many people will need the background in order to understand what today’s decision is even about. (I ran into a few people on Reddit today chanting, “9-0! 9-0!” who clearly did not.) I do think today’s decision is worth reading. It’s only 20 pages with huge margins.² Nevertheless, I’ll sum it up for you:

The Holdings

The Court did not decide any of the following questions, because it didn’t need to:

• Was January 6th an insurrection within the meaning of Section Three?

• If it was an insurrection, did President Trump “engage” in it?

• Is the President an “officer of” or “officer under the United States”?

As I’ve argued for months, the answer to all those questions should be “yes,” but, since the Supreme Court ruled Colorado had no power to consider any of these questions in the first place, the Supreme Court did not answer them, yes or no.

The Court had two holdings today.

One of the holdings was unanimous. All the justices, conservative and progressive, agreed with the unanimous holding: “States have no power under the Constitution to enforce Section 3 with respect to federal offices.”

The second holding was a closely divided, 5-4 decision. The progressives (Sotomayor, Kagan, and Jackson) plus Barrett all voted against it. This majority holding went further than the unanimous holding: when it comes to federal officials, a cause of action under Section 3 most be created by Congress and only by Congress, which must act exclusively through legislation.

The majority holding may seem at first like it’s exactly the same as the unanimous holding. Yet four justices who joined the unanimous holding refused to join the majority holding. We’ll come back to that.

The Unanimous Holding: Sit Down, States!

Let’s start with a look at the unanimous holding. Even though Section Three supplies a rule of law (“oathbreaking insurrectionists can’t hold office”) and Colorado law supplies a cause of action (“someone who can’t hold office can’t be on our state ballot, and courts can enforce this”), the Supreme Court³ says that isn’t good enough. Colorado courts, legislators, and judges, they hold, can apply Section Three to a candidate for a state office, but not to a federal office.

I welcome the Court’s concession that states can at least enforce Section Three against state candidates. Many commentators thought that, under Griffin’s Case, states could not enforce Section Three at all, because (they thought) Section Three belonged exclusively to Congress at every level. As I’ve argued, that’s a misinterpretation of Griffin’s Case, but a popular one. Oral arguments got so bad that I thought that was where the Supreme Court was heading. I thought this was going to end with New Mexico having to reinstate insurrectionist Couy Griffin (no relation to Griffin’s Case) as a county commissioner because the Court would find New Mexico had no power to review his qualifications.

Happily, the Court did not reach this extreme view. The Court acknowledged the thick pile of evidence showing how states can and have enforced Section Three in state-level proceedings. Do I detect a whiff of Justice Barrett’s influence? (Barrett was the only person at oral arguments—including the advocates—to correctly articulate the meaning and limits of Griffin’s Case.)

…but then the Court turned around and said that state-level proceedings only work against state officials. Reading the Fourteenth Amendment, you might be puzzled where the Court got that idea. Certainly not from the text! The text draws no distinction between state and federal elections. As we’ve explored, the popular belief that Section Five textually grants Congress exclusive power over enforcement stems from a typo; the actual text is non-exclusive. So where?

First, they find this idea in a 1995 decision called U.S. Term Limits v. Thornton. In Thornton, the state of Arkansas passed a state law preventing candidates from appearing on the ballot for Congress if they had already served three terms. The Supreme Court struck this law down, for several reasons:

• The Constitution defines qualifications for Congressmen, and states cannot add to those qualifications.

• The Constitution (Article I, Section 5) explicitly grants the two Houses of Congress, and no one else, exclusive power to “judge the… Qualifications of its own Members,” and national history and tradition have always treated that power as exclusive.

• The House of Representatives was designed to be elected directly by the People, and the Constitution says so explicitly. Since “the right to choose representatives belongs not to the States, but to the People,” states may not interpose with extra qualifications.

• The Framers envisioned a “uniform national system” for the House, “creating a direct link between the National Government and the people.” Because of this, the Members of Congress would “owe their existence and functions to the united voice of the whole, not of a portion, of the People.” States were not entitled to unilaterally sever this link.

• Finally, “powers over the election of federal officers had to be delegated to, rather than reserved by” the States. States could not invent new delegations.

The first thing you may notice about this decision is that it has absolutely nothing to do with anything going on in Trump v. Anderson:

• Section Three disqualification is prescribed the Constitution. Colorado didn’t make it up.

• The Constitution does not explicitly grant Congress power to judge the qualifications of the President. In fact, the Constitution does not expressly grant anyone that power—yet the Constitution includes qualifications clauses.

• The Presidency was expressly designed not to be elected directly by the People! The Constitution ties itself in really complicated knots to make sure that the “right to choose” the President does, in fact, “belong” specifically to the States, and not to the People! (ASIDE: wow, didn’t expect Saturday’s post to be quite so relevant quite so quickly!)

• The Framers did not envision a uniform national system for electing the President, and deliberately embraced a system that would admit a national patchwork of different elector selection methods, all of them designed to appoint electors so as to break any “direct link” between the President and the People. (Again, see Saturday’s post! Especially footnotes 12 & 13 and accompanying text!)

• The entire point of the Electors Clause (Article II, Section 1) is to delegate power over the election of federal officers to the States!

In case the justices might somehow miss these glaringly obvious points, U.S. Term Limits, Inc., the same group from the original case, filed an entire amicus brief explaining, exclusively and explicitly, why the Supreme Court should not cite Thornton in today’s case! It was a good brief! And the justices didn’t even ACKNOWLEDGE it!

GAHHHH!

Man, a good friend of mine (who was never quite convinced by my argument) joked today on the group chat that “We will all look forward to James’s Trump v Anderson: An Unbridled Rage,”⁴ and I actually thought to myself, “Oh, won’t he be surprised when he finds out all how serene I am in my disappointment.” Alright. Deep breath. Onward.

The justices’ huge extension of Thornton today bears all the hallmarks of a John Roberts Blue Plate Special: wrench some quotes out of context that look kind of plausible as garnish on a radical but modest-sounding and politically convenient revision of the law. Still, you have to wonder how he sold it to the conservatives, given how much conservatives traditionally hate Thornton.

That’s right! Although the Thornton Court took the moderate view that states cannot add made-up qualifications for Congressmen specifically, the conservatives saw even that as an outrageous attack on states’ rights. Thornton was a 5-4 decision. All three conservatives then on the Court, including the revered Justice Scalia, vigorously dissented. Clarence Thomas wrote that dissent:

Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.

…Contrary to the majority's suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so.

That’s from the first page of an 81-page barnburner, which closes:

I would read the Qualifications Clauses to do no more than what they say.

Today, without any explanation, or even a formal acknowledgment that he has recanted, Justice Thomas joins the unanimous holding in not just affirming, but radically expanding, Thornton. He takes this decision he once rejected and applies it to a new, very different situation. In terms of original public meaning, Thomas and the rest of the Court have turned the original Thornton Court’s debatable position into an indefensible one.

GAHHHHH!

The Court didn’t rely solely on misapplications of Thornton, though. The Court also informed us that, at a high level of generality, the purpose of the Fourteenth Amendment was to impose “significant limitations on state authority” while “grant[ing] new power to Congress.” Therefore, “[i]t would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office.”

Needless to say, nothing in the Fourteenth Amendment says that it should be interpreted this way. The justices are making an argument about the purpose of the Fourteenth Amendment—not its text, not its structural role in the Constitution, but a sort of free-floating general principle that the legislators in 1868 may have had in mind. (The Court doesn’t make much of an argument that they did. It just sort of gestures in that direction.) They are careful to avoid using the actual word “purpose,” perhaps because it would be so embarrassing in light of the majority’s professed commitment to following the original public meaning of the text instead of an alleged and amorphous “legislative purpose.”

The only sort-of originalist argument the Court makes to insert this anachronistic rule of construction into the Fourteenth Amendment is an ill-advised historical argument: during the first decade of Section Three enforcement, states did not use Section Three to disqualify a federal candidate from running for office. The Court calls this lack of a “tradition of state enforcement” a “‘telling indication’ of a ‘severe constitutional problem’ with the asserted power.” There are two problems with this:

First, it’s obvious why there would be very little state-based enforcement of Section Three against candidates for elected federal offices: there were no candidates for elected federal offices to target! U.S. Senators were still appointed directly by legislatures, with no public election, so there was very little (if any) opportunity for a state court to challenge their qualifications. Likewise, U.S. Representatives were protected because the Constitution made the House the sole judge of Congressional qualifications. The only elected federal officials who could have been targeted by Section Three were presidential candidates—and, back then, our citizens were not stupid enough to put any disqualified candidates on a presidential ticket!

This “historical” argument, then, is like saying that an 1865 New York City ordinance regulating the amount of wheat in bread products does not regulate bagels, because there was no “identifi[able]… tradition of state enforcement” of the Wheat Ordinance against bagel-makers from 1865-1875. The Justices act like this proves bagels don’t fall within the original public meaning of “bread product.” Yet the actual reason for the lack of a “tradition of state enforcement” against bagel-makers is because bagels didn’t arrive in New York City until the early 1900s!

We have no history of enforcing Section Three against presidential candidates because oathbreaking insurrectionist presidential candidates didn’t arrive in the United States until January 6, 2021!

Second, as the Court halfway admits, the claim that states never enforced Section Three against federal candidates is simply false! Despite the fact that Congress, not the states, is constitutionally always the final judge of qualifications for a congressman-elect, there is one contemporary occasion on which a state stepped in to enforce Section Three against a congressman-elect anyway!

In late 1868, Georgia was governed by Gov. Rufus Bullock, a Republican who had won office thanks to newly-enfranchised Black voters. Bullock determined (with no court proceedings) that one John Christy, who had recently won an election to Congress, was an oathbreaking insurrectionist. Bullock declared Christy’s election invalid and refused to give Christy his commission. Congress reviewed the governor’s decision… and upheld it! Congress gave zero hint that they considered the Governor’s intervention and independent decision remotely inappropriate!

The Court admits that this happened. However, the Court says that, because Congress reviewed this case and made the final decision—in an election to the House, where Congress is constitutionally the final judge of qualifications—that final review proves that the states had no power to act independent of Congress… and that, furthermore, this can only mean that states have no power to enforce Section Three against any candidates for federal office, even those who are running for entirely different offices with different mechanisms for resolving qualifications (like President).

GAHHHHHH!

Finally, we come to the third rationale for the unanimous holding. I suspect this is the Court’s most authentic rationale:

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.”

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. Some States might allow a Section 3 challenge to succeed based on a preponderance of the evidence, while others might require a heightened showing. Certain evidence (like the congressional Report on which the lower courts relied here) might be admissible in some States but inadmissible hearsay in others. Disqualification might be possible only through criminal prosecution, as opposed to expedited civil proceedings, in particular States. Indeed, in some States—unlike Colorado (or Maine, where the secretary of state recently issued an order excluding former President Trump from the primary ballot)—procedures for excluding an ineligible candidate from the ballot may not exist at all. The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).

The “patchwork” that would likely result from state enforcement would “sever the direct link that the Framers found so critical between the National Government and the people of the United States” as a whole. But in a Presidential election “the impact of the votes cast in each State is affected by the votes cast”— or, in this case, the votes not allowed to be cast—“for the various candidates in other States.” An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times… Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.

Shorter: if we let states apply their own laws, they might reach different conclusions about who can or should be President. The states themselves might even thereby gulp influence who the next President will be!

Congratulations, The Supreme Court. You’ve discovered two important things: federalism and Article II of the Constitution.

…annnnnd you’ve just turned your faces away from them in alarm and disgust. Once again, the deliberately-designed “patchwork” system the Founders gave us gets stomped on, as the Court (once again) treats our de facto semi-direct popular election of the President as if it’s somehow enshrined in the Constitution, not a jerry-rigged constitutional failure mode.

To be fair, the advocate for Anderson did a very bad job defending this point at oral argument. He kept trying to insist there would be no chaos. The correct argument was that there would be chaos, just as the Founders intended.

Still. Hug an originalist tonight, dear reader. It’s been a long day. Dan McLaughlin at National Review, an originalist who has opposed the case since Day One,⁵ agrees: the Supreme Court decided this case incorrectly.

Nevertheless, the Court put the best lipstick on this pig that it could. I do sincerely believe that each justice who signed on to this dog’s breakfast sincerely (albeit wrongly) agreed with at least two paragraphs of Section II-B. I suspect that each justice also signed on to at least three paragraphs that they didn’t fully agree with, in order to hold together the (politically) essential 9-0 unanimous judgment.

We must consider the toll taken by how rushed this case was, how rushed the justices were to write this opinion after oral argument (they only had three weeks!), how poorly our side handled oral argument, and how hard Team Trump worked to confuse the issue. The justices handled this rush while under immense political pressure, and they faced a tsunami of briefs from every interested scholar and activist in the entire country. I don’t think Supreme Court Delenda Est, or that they’ve betrayed democracy (as some wildly overheated takes have it), or that the conservatives have abandoned originalism. I still think we have the best Supreme Court we have ever had in my lifetime—or, indeed, my parents’ lifetimes. This is the ruling that Court reached.

And yet it moves!

The Majority Holding: Shutting Down J6 2025

A five-justice majority—Roberts, Gorsuch, Thomas, Alito, and Kavanaugh, aka The Menfolk—went beyond the unanimous holding (states can’t enforce Section Three against federal officials). The majority further held that Section Three can be enforced against federal officials only under Congressional legislation. The majority further spelled out some of the characteristics of this legislation:⁶

• The enforcement legislation must spell out specific rules for “proceedings, evidence, decisions, and enforcements of decisions, more or less formal.”

• The legislation’s scope must be “congruen[t] and proportion[al]” to the wrong of an insurrectionist illegitimately taking office.

• The legislation must be subject to judicial review.

This may seem like an odd thing to insert, and an even odder thing to drive a 5-4 split over. Any plausible bill to enforce Section Three against insurrectionists would do all these things already. Why does the Court need to say it? Why did Kagan, Sotomayor, and Jackson get so upset that the Court did so?

Simple: the unanimous holding rules out state action to enforce Section Three, but says nothing more than that. The majority holding, on the other hand, not only rules out state action, but also a bunch of non-legislative federal actions. For example, if an insurrectionist were to win electoral votes (which is definitely going to happen this fall), it is more than plausible that Congressmen could object to those votes for being invalid due to Section Three. This would follow the same procedure as the electoral vote objections filed (by Republicans) on 6 January 2021, (by Democrats) on 6 January 2005, and (by Democrats) on 6 January 2001. The crucial difference between these objections and those objections is that those objections were all political stunts that barely hung together logically, much less legally. These objections to counting the Trump votes would be legally correct.

It’s no simple matter to carry off an electoral count objection. You may be familiar with the details from my long August 2020 post on how, if the election were close, we could kick off a civil war on January 6th, 2021.⁷ However, as tough as that procedure was, the Electoral Count Reform Act of 2022 made it much harder. Given how dangerous the old system was, this was probably the single best thing the 117th Congress accomplished, but it means anti-Trump electoral college objectors have a very steep hill to climb. Yet what if they pull it off? What if they successfully object to some or all of Trump’s electoral votes? What if Trump wins the electoral vote on election night, and then loses it on January 6, 2025?

On the one hand, Section Three of the Fourteenth Amendment would finally be vindicated. Fiat iustitia ruat caelum: let justice be done, though the heavens fall! On the other hand, if Trump were thrown out on J6, four years after his followers failed to throw out somebody else on J6, the optics would overwhelm the legal differences between the two days, and the heavens might very well fall.

The majority opinion appears to be a pre-emptive strike against anyone in Congress who might try to object to an electoral vote on Section Three grounds. That won’t do, says the majority. Section Three can only be enforced by legislation. The current Congress absolutely will not pass legislation; the Senate filibuster will see to that. The new Congress, even if it somehow has way more Democrats in it, almost certainly couldn’t pass legislation until after the joint session to count the electors. This ensures nothing will happen to stop Trump on 6 January 2025 if he wins the election—even if he is an oathbreaking insurrectionist, a question the Court never decides.

The dissenters (Jackson, Kagan, Sotomayor, and Barrett) all think the Court is reaching beyond this case to decide other questions it isn’t entitled to decide. I’m not certain. Roberts writes at the end of the main opinion that everything in the opinion was necessary to resolve the case. I can believe that, in this sense: all justices were convinced of the final outcome, but different justices were convinced by different arguments. Maybe one justice was only convinced that Colorado was wrong at all thanks to these broad arguments.

On the other hand, since this is a Roberts Blue Plate Special, it does seem more likely that Roberts wanted to cut off a political threat to the Court coming in January 2025, and that he managed to convince four other justices to go along for political reasons.

It appears to me that there are very serious consequences to Roberts’ shenanigans.

First, as I discussed in “The Minnesota GOP Gives the Gift of Obama,” the Court’s reasoning here about state incapacity to enforce the Fourteenth Amendment seems to extend equally well to the Twenty-Second Amendment. In light of the majority decision in Trump v. Anderson, why can’t Barack Obama run for a third term, in defiance of the Constitution? (What if he puts on a tiny mustache and pretends to be a different person?) Who can stop him? The Supreme Court tells us today that states can’t do a thing about this, and the majority opinion also prevents Congress from acting on January 6. Does Congress have to pass specific legislation creating a court proceeding to prevent Obama from taking office for a third time? Man, that’d really solve the Democrats’ problems with Sleepy Joe, wouldn’t it?

Second, the Court’s bald assertion that Section Three can only be enforced by legislation seems to rule out the many disqualification hearings carried out by each house of Congress individually during the late 1860s and early ‘70s. The House and Senate exercised their constitutional power as the sole judges of their members’ qualifications to admit or refuse various alleged insurrectionists. At no point did they enact legislation to this effect. The unanimous holding mentions this, approvingly, in passing… but the majority holding, which demands legislation, seems to contradict it. If Roberts is right, do we have to send a letter of apology to the heirs of Zebulon Vance, the insurrectionist racist Klansman denied a Senate seat without enabling legislation in 1870? If the majority thinks the answer is “no,” it’s unclear why.

Still, it’s hard to work myself into a lather about the majority extending the unanimous holding using politically-motivated reasoning, since (in my view) the unanimous holding already relies on plenty of politically-motivated reasoning! Whatever. An electoral college objection on January 6, 2025 was never the way to go here.

The Supreme Court cites the Enforcement Act of 1870 (aka the KKK Act) as a valid exercise of Congress’s Section Three enforcement power. The KKK Act authorized U.S. district attorneys to go after insurrectionists under a writ of quo warranto. As we discussed on this blog in the Griffin’s Case post, that made sense. In the mid-nineteenth century, writs of quo warranto—not ballot access challenges—were the ordinary way to remove disqualified officers from office. Everyone in Griffin’s Case agreed that it was legitimate to proceed against an insurrectionist office-holder on a writ of quo warranto. (Griffin’s Case only ruled out trying to do it through a writ of habeas corpus.) A number of states had laws at the time, or passed laws around that time, which allowed courts to use quo warranto remove someone from office who “usurps, intrudes into, or unlawfully holds or exercises” any public office. Those laws were duly used to remove insurrectionists from office (for example, in State of Louisiana ex rel. Sandlin v. Watkins, 21 La.Ann. 631 (1869), because of course they were. That was what they were for, and everyone understood that.

So I guess the correct course of action here, now that the Supreme Court has ruled out state-based ballot access challenges, is to go ahead and proceed on a writ of quo warranto against President Trump after he has taken office, by using the federal statute authorizing writs of quo warranto against federal officeholders.

The Federal Quo Warranto Statute

Title 16, Chapter 35, Subchapter I of the Code of the District of Columbia states:

§ 16–3501. Persons against whom issued; civil action.

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

§ 16–3502. Parties who may institute; ex rel. proceedings.

The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant.

§ 16–3503. Refusal of Attorney General or United States attorney to act; procedure.

If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued. When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States, on the relation of the interested person on his compliance with the condition prescribed by section 16-3502 as to security for costs.

Subchapter III contains additional procedural details.

This is a statute. It was not passed by a state. It is legislation passed by Congress⁸ to govern the Congress-controlled territory where the President resides, holds, and exercises a civil public office of the United States.

This statute spells out specific rules for “proceedings, evidence, decisions, and enforcements of decisions”.

It is subject to judicial review.

Its scope is “congruen[t] and proportion[al]” to the wrong of an insurrectionist illegitimately holding office. Indeed, legislation following this traditional formula seems to have been precisely what Chief Justice Chase and the attorneys in Griffin’s Case had in mind when he demanded Congress pass federal legislation to authorize quo warranto actions against state officials.

According to the conclusions of the majority holding today, this federal quo warranto statute is the appropriate vehicle, approved by Congress, for enforcing Section Three against a President.

To the best of my understanding, quo warranto can only be brought against an officer who actually holds office, not an officer-elect. It therefore could only be brought against Donald Trump after his second inauguration. (Notice how I don’t say, “after he takes office.” As he is ineligible, he technically never takes office.) There are substantial hurdles to instituting a quo warranto proceeding under this statute, not least thanks to hasty Obama-era precedents written to quash frankly unhinged “birther” lawsuits by self-represented litigants. (The saying is true: a man who’s his own lawyer has a fool for a client.) Taitz v. Obama and Sibley v. Obama are particularly annoying, since, combined, they seem to hold that a petitioner would have to be both a 2024 presidential candidate (however minor) and have the support (at least initially) of either the U.S. Attorney General or the U.S. Attorney for the District of Columbia. This could be particularly challenging, since the quo warranto may not be brought until after inauguration. By that time, the only remaining parts of Biden’s team will presumably be acting attorneys, and then only until the Senate confirms replacements.

However, if a quo warranto proceeding could be successfully instituted, the court would proceed to properly consider the questions that the Supreme Court dodged in today’s case: did the President engage in an insurrection? Is the President an officer of the United States? Upon a ruling that he did, he is found never to have held office, and is thereafter deprived of it.

The House has the sole power to impeach, and we wouldn’t dare usurp that power. This is not an impeachment! An impeachment removes a valid office-holder from office. A quo warranto finds that the office-holder never validly held the office in the first place. Hence, in state courts, state officers can be (and have been) turfed out on quo warranto from office (like a judgeship) even though only the legislature can remove someone from that office. Quo warranto works because the target is an intruder on the office, who never held it at all. Impeachment is like a divorce, which dissolves a marriage, while quo warranto is like an annulment, which declares that a marriage never existed in the first place.

There is more to be said about this. Frankly, there is a lot more to be read about this. I worry that there’s some trap lying in wait buried in the D.C. Code where it says something like, “…and P.S. nothing in the D.C. Code applies to the President.” I don’t know the D.C. Code at all. I may have made a mistake here, and I know I haven’t read all the precedents yet.

Still, this seems like a relevant statute that probably should have come up in the Supreme Court’s decision today! However, based on this line of the decision:

Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3. (slip op., p11)

…I think it’s probable that the Supreme Court is currently unaware of D.C. Code §16-3501. (That or I’m missing something big, which, of course, is possible.) They may not realize that, in their desperation to avoid facing this issue today, or on 6 January 2025, they may have just teed us up—if the law says what it seems to say and if the public interest law firms are interested in pursuing this further—to face the issue on 21 January 2025 instead.

That seems to me like probably the worst possible time to resolve this, but the Supreme Court should have considered that before they shut down this entire case on a made-up technicality.

Let’s go back to them for the conclusion, eh?

Conclusion: An American Tradition

Many others have already pointed this out, but there’s a very old tradition in American politics.

First, the Reconstruction Congress of 1864-1871 passes a sweeping constitutional amendment that, according to its framers and according to its text, creates dramatic new rights and duties across the land.

Second, after extraordinary struggle and tumult, the sweeping new amendment is ratified, so that the sacrifice of the 600,000 Americans who died in the Civil War might not be in vain.

Third, someone tries to assert those plainly-written rights and duties in federal courts for the first time.

Fourth, the U.S. Supreme Court realizes that the sweeping amendment to our fundamental law has sweeping consequences for our fundamental law, panics, and stuffs cotton in its ears.

Fifth, the U.S. Supreme Court comes up with a cockamamie excuse to read the sweeping amendment narrowly, such that it has no real effect on the law.

Sixth, the sweeping constitutional provision lies dead or maimed for a period lasting anywhere from sixty years to forever, the sacrifices getting it into the law all for naught.

As Justice Thomas likes to remind us, we did this with the Privileges & Immunities Clause in The Slaughter-House Cases. We did it to the Equal Protection Clause in Plessy v. Ferguson. Many people argue that we did it to the Thirteenth Amendment in Hodges v. United States. In this light, it’s hardly surprising that, the first time a truly significant Section Three case has ever come before the Supreme Court, the Supreme Court followed the old tradition—and maimed Section Three.

It’s just that I spent much of the past few months thinking that, maybe (only ever “maybe”) the tools of originalist-textualism would prove stronger than this vicious old habit of ours. Maybe it was the political situation, maybe it was the speed the case had to be solved, maybe the justices really sincerely looked at the evidence with open hearts and just drew different conclusions than I did… but, whatever the reason, originalist-textualism as I understand the enterprise was not up to the challenge this time. That is disappointing.

HOUSEKEEPING NOTE: Part II of the electoral college overhaul article may be delayed by a few days due to all this. Today was supposed to be a writing day. And it was! But not on that article.

1. Feather-in-my-cap: A bit from that article popped up in my favorite amicus brief (calling attention to the fact that the lawyers in Griffin’s Case all agreed that states could bring quo warranto actions under Section Three without federal enforcement legislation).

2. See “How to Read a Supreme Court Decision” for tips & tricks. If my article today ends up longer than the SCOTUS decision, blame Brandolini’s Law.

3. I will refer to this as “the Court’s” opinion throughout, because this was a unanimous, unsigned decision issued per curiam—“through the court [itself].”

However, in case you are wondering, the main author of “the Court’s” opinion was definitely 100% no-fooling Chief Justice John Roberts. I have no insider information. I just know a Roberts opinion when I see one. Everyone in the legal commentariat seems to agree with this. Justice Crapburger finally notched a big win.

4. Occasional De Civitate contributor Luke LoPresto replied, “Oh please no, if he tries to make an article that takes six hours to read aloud we'll never see him again,” proving that he knows me well.

Also, I had never heard of The Rise of Skywalker: An Unbridled Rage before this, but I guess I should watch it soon, given my, uh, position on the sequel trilogy.

5. McLaughlin opposes the case because he thinks Trump did not engage in insurrection. Obviously, I think he’s mistaken about that, though I am at least quite certain it’s an honest mistake.

6. These are mostly from Part II-A, but a couple are from Part II-B. Justice Barrett’s concurrence states she joins Part II-B in full, which means that she at least acquiesces to some of these requirements, even as she generally rejects the Court’s decision to reach these issues.

7. I’m still very pleased that the election was exactly close enough to prove me right without being so close that we actually had a civil war. The difference between President Biden and Civil War II was about fifty thousand votes, out of a hundred fifty-eight million cast. I dunno, maybe people in power should listen to De Civ and maybe pass a few amendments?

8. The earliest version of this law listed on the D.C. Code website is from Public Law 88-241, aka the Act of 23 December 1963.

However, this was only a codification from older law. Given how exactly it matches the language of the 1860s Minnesota quo warranto law and the Louisiana Intrusion Act of 1868, I’d bet a dollar that some version of this law dates to the 19th century. Just gotta track it down.