Trump v. Anderson Ostensibly Saved Trump’s Political Career. In Fact It Ended It—As a New Federal Lawsuit That Could Be Filed At Any Time Would Quickly Establish.

Media misreadings of the Trump v. Anderson decision frame it as a victory for Trump. That’s only because no one yet sees that the Anderson Court created a catch-22 for itself that it can’t now escape.

1

In Trump v. Anderson (text), the United States Supreme Court ruled 5-4 that Congress must make “some kind of ‘determination’” that an individual has “engaged in” the act of “insurrection” before state officials are empowered to remove such a person from a federal general election ballot pursuant to such federal guidance and Section 3 of the Fourteenth Amendment to the United States Constitution.

The Anderson majority made clear that the only question before it in the case was the “single question”, “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?” Having concluded that it did by a 9-0 combined vote—its 5-4 majority vote establishing one reasoning for why the Colorado Supreme Court had erred, a question beyond the one posed to the Court—the Court ordered that Donald Trump’s name be kept on Colorado’s primary ballot.

Trump thereafter, on March 6, 2024, became the presumptive 2024 Republican Party nominee for the office of President of the United States.

The 5-4 Anderson holding on why the Colorado Supreme Court erred in the Trump ballot-access case—as opposed to the unanimous decision as to the fact that it erred—was clear in its view that “The [U.S.] Constitution empowers Congress to prescribe how those determinations [that an individual has engaged in insurrection] should be made” (emphasis supplied).

But the five Anderson-majority justices—who many now say issued a ruling that seems to contradict the above statement by indeed prescribing, in place of its admission that it’s really Congress’ prerogative to do so, “how those [disqualification] determinations should be made”—did not, in fact, issue as narrow a decision as many seem to believe.

Indeed, it seems even Anderson’s legal team is misreading the opinion by taking one sentence in a longer paragraph out of context. Here is the full paragraph in question (with quotations unbolded and three key words, instead, in bold; citations omitted):

The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment. Or as Senator Howard put it at the time the Amendment was framed, Section 5 “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith.”

Note that the Trump v. Anderson Court says Section 5 “enables” but does not require Congress to “pass ‘appropriate legislation’” to enforce Section 3 of the Fourteenth Amendment, as in fact Section 5 of the Fourteenth Amendment “empowers Congress to prescribe” how it will make a determination that a person has engaged in an act of insurrection under Section 3.

In discussing how Section 5 provides guidance for Section 3—the latter the section that arguably disqualifies Trump from the presidential ballot—the Anderson Court expands on the example it’s provided of Congress “pass[ing] ‘appropriate legislation’” by clarifying that this is just one from a larger panoply of options, as in fact it is in far broader terms (the Court notes, citing the late Senator Howard) that Section 5 “casts upon Congress the responsibility of seeing to it…that all sections of the [Fourteenth] [A]mendment are carried out in good faith.” No mention is made, by Senator Howard or the Anderson Court, of legislation being the only way Congress can “see[ ] to it” that the Fourteenth Amendment is honored, as of course—not to be facetious—by way of example Congress could pass an additional constitutional amendment to honor the intent of the Fourteenth Amendment. Or it could files articles of impeachment that explicitly state their intention to honor the Fourteenth Amendment—as it so happens the 2021 articles of impeachment against Donald Trump did in their very first paragraph.

We will return to this last observation in a bit.

While the Anderson Court does thereafter observe that another United States senator, Senator Trumbull, correctly noted in the congressional record that (as all agree) the Constitution doesn’t specify a “mechanism” for enforcing Section 3 of the Fourteenth Amendment—which lack of specification Senator Trumbull believed “necessitated” the passing of a “bill” as a promising means of remedying that fault—Sen. Trumbull is not quoted for the proposition that this was the only allowable solution, merely for his belief that legislation would be an appropriate solution to the problem. And indeed Sen. Trumbull, whom we’ll discuss in more detail infra, may have only intended to say—as a third of the Anderson Court observed in its writings on him—that legislation was simply a more “speedy” way of achieving ends also achieveable via other means.

But certainly it may have been the case, indeed for the past many decades, that many members of Congress have agreed that new legislation is an appropriate means—if not the only allowable one—to establish a “mechanism” for the enforcement of Section 3 of the Fourteenth Amendment.

Then Trump v. United States, scheduled for oral argument this April 25th, came along.

2

In Trump v. United States, Trump contends that indictment by the executive branch (DOJ) under a federal criminal statute (thus, congressional legislation) is actually not the appropriate mechanism, in the first instance, for the federal government to pursue redress against a President of the United States who’s committed a crime—including a crime falling under the umbrella of insurrection. Rather, Trump contends in Trump v. United States, the mechanism of first resort Congress has in addressing the issue of whether a president (or former president) has engaged in a crime answering to the constitutional definition of “insurrection” is impeachment.

Of course, Trump v. Anderson, which establishes as a constitutional floor that a vote of Congress sufficient to pass legislation—thus, a majority vote—is required to find that an individual engaged in insurrection under Section 3 of the Fourteenth Amendment, is now settled law.

By comparison, Trump v. United States is still pending.

So the argument made by litigant Trump in Trump v. United States, that impeachment is the appropriate context for Congress to meet its new constitutional floor (a majority vote) to find that an individual has engaged in insurrection under the terms of Section 3 of the Fourteenth Amendment, remains on the table. And in fact, SCOTUS has already demonstrated its interest in this novel argument by agreeing to conduct an oral argument on Trump’s claim rather than upholding a unanimous ruling already made on the question by the U.S. Court of Appeals for the District of Columbia Circuit.

What Trump cannot do, post-Trump v. Anderson, is argue before the court that a higher percentage of Congress—a super-majority, rather than a mere majority—is required in an impeachment proceeding to find (in the case of acts of insurrection) a president committed such offenses in a way Section 3 would recognize. Anderson has settled that question by allowing that a majority vote of Congress—such as would be required for the passage of new legislation—is sufficient to make such a determination.

3

In view of the foregoing, Trump and his legal team are now estopped—as litigants in Trump v. Anderson—from making any claim in Trump v. United States other than that a majority vote of Congress in an impeachment proceeding adjudicating Incitement of Insurrection is sufficient for “Congress” to “determine” that a person has “engaged in” an act of “insurrection” such that they are blocked from presidential ballots under Section 3 of the Fourteenth Amendment.

And on January 13, 2021, a majority of the United States House of Representatives (232-197) voted that Trump had engaged in the act of Incitement of Insurrection.

And on February 13, 2021, a majority of the United States Senate (57-43) voted that Trump had engaged in the act of Incitement of Insurrection.

At stake in these two votes were much more than one constitutional determination.

While the House voting, by a majority, that Donald Trump had engaged in the act of Inciting Insurrection was sufficient to impeach him, in the Senate a two-thirds vote was required on the question of immediate removal from office. Indeed, many senators who voted on the matter of immediate removal from office elected not to vote to convict former President Trump on the grounds that immediate removal from office was no longer possible—as Trump was no longer President of the United States by then.

But in light of the ruling in Trump v. Anderson, we now see that also at stake in those 2021 votes was the constitutional question of whether Congress would issue a vote sufficient to enact legislation (again, a simple majority vote) determining that Trump had indeed committed an act of insurrection. The House had already made such a vote in impeaching then-president Trump by a majority vote on January 13, 2021; the issue in the Senate was whether the Senate would match that majority vote with one of its own in also finding that former president Trump had engaged in an act of insurrection.

And it did so, by a vote of 57-43.

The moment Congress established its final vote (289-240) on the question of whether President Trump had engaged in an act of insurrection, Section 3 of the Fourteenth Amendment had been duly sprung by a mechanism that was, appropriately, wholly under the control of Congress, which the Court in Trump v. Anderson held is “enabled” to set up any “mechanism” that “see[s] to it….that all the sections of the [Fourteenth] [A]mendment are carried out in good faith.” One such mechanism, all parties agree, is the mechanism of impeachment, which is expressly authorized by the Constitution.

4

The 5-4 Anderson majority repeatedly underscored that its task was not to establish a single mechanism for Congress to discharge its duty under Section 3 of the Fourteenth Amendment. And in any case, the Anderson Court certainly could not remove existing constitutional mechanisms, such as impeachment, without expressly holding that it was doing so—which it did not do or express any ambition to do. But what it could do, and what it did do, is establish the exact percentage of Congress needed to spring a constitutionally sound enforcement of Section 3 of the Fourteenth Amendment. And in Anderson, that percentage was set at a simple majority of both houses of Congress.

To return to the Anderson Court’s self-limiting of its own holding (as opposed to dicta), consider the following words from the Anderson ruling setting the terms of the ruling:

1. “The single question [before us is]…‘Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?’”

2. “This case raises the question whether the States, in addition to Congress, may also enforce Section 3.”

We could also consider, as another way of making the same observation on the limits of the Anderson holding, whether dicta in the case confirm that the Anderson Court did contemplate impeachment proceedings as an allowable mechanism for addressing “officeholders who may be violating Section 3.”

And what we find is that the Court in fact did so (emphasis supplied):

As an initial matter, not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3.

This unambiguous reference to federal impeachment proceedings underscores that the Anderson Court was not only mindful of the constitutionality of impeachment proceedings as to Section 3-related offenses but also of their preeminence as effective proof that only Congress is authorized to employ mechanisms in the enforcement of Section 3. States cannot conduct impeachment proceedings against federal officials.

The Court specifically pointing to federal impeachment proceedings as confirmation of the both special and irreplaceable mechanisms that Congress has to enforce Section 3 is essential to its answering of what it called the “single question” before it in Anderson.

As already observed, it is a misreading of the text of Anderson to say that it prescribes legislation, rather than impeachment, as the only means of enacting a Section 3 ballot removal. Putting aside the facial infirmity of such a reading—which places a holding issued (and then read in a very particular way) in 2024 over an explicit provision of the Constitution as written in the late 1700s—even in Anderson we find no support for it.

Consider these additional words from Anderson, all declining to make legislation the exclusive means for enforcing Section 3 (emphasis supplied):

• “Congress…enjoys power to enforce the [Fourteenth] Amendment through legislation pursuant to Section 5.”

• “[T]he Fourteenth Amendment grants new power to Congress to enforce the provisions of the Amendment against the States.”

In acknowledging that Section 5 of the Fourteenth Amendment granted Congress “new” power to enforce that Amendment, the Anderson Court made clear that there could also be “older” powers—powers already present in the Constitution, like the congressional power of impeachment—to enforce the provisions of Amendments.

And indeed no one can doubt that merely by creating (say) the federal court system, which every day enforces (say) the Fourth and Fifth Amendments to the United States Constitution, the unamended text of the Constitution in fact created what would by 1866 have been deemed “older” powers for enforcement of its Amendments.

Just so, in writing that “States did disqualify persons from holding state offices following ratification of the Fourteenth Amendment, [and] [t]hat pattern of disqualification with respect to state but not federal offices provides ‘persuasive evidence of a general understanding’ that the States lacked enforcement power with respect to the latter”, the Anderson Court finds—unambiguously—that the history of Section 3 establishes Congress as having an “enforcement power with respect to [Section 3 provisions related to federal offices]” and there being, as well, a “general understanding” of this fact. Did this general understanding arise only after 1866? No, as evidenced, at the risk of seeming coyly reductive, by the fact that States did not try to impeach or otherwise disqualify federal officials in the first half of the 1800s, either.

So any new enforcement power acknowledged by the Anderson Court could only arise from an existing Article I congressional authority that pre-dates Anderson. This further confirms that the Anderson Court could not rule, and did not intend to rule, that new legislation has to be passed in 2024 (or sometime thereafter) for Congress to possess “enforcement power with respect to [the provisions of Section 3 relating to federal offices]”, as if that were so Congress would have lacked such power, contra Anderson, from both 1789 through 1866 and from the passing of the Fourteenth Amendment in 1866 to the present day. That would be a nonsensical claim with a nonsensical result.

In fact, the “enforcement power” the Anderson Court acknowledges Congress had in (say) 1867, 1877, 1914, 1951, 1979, and 2006 could only have come from impeachment, as to date, the Anderson Court holds, there’s been no legislation from Congress specifically related to the enforcement of Section 3. Impeachment is the only possible location for a power, therefore, that the Anderson Court has unambiguously identified as already extant and resident in Congress. Indeed, it was this already extant power the Anderson Court cited in disqualifying any state enforcement of Section 3. As the Court wrote, Congress—and only Congress—“has long given effect to Section 3 with respect to would-be or existing federal officeholders.”

{Note: Lest any skeptic note that the example the Court gives for this last observation was a piece of legislation passed in 1870—four years after the Fourteenth Amendment was written into law—it still could not be the case, nor does the Court say that it was the case, that in 1866, 1867, 1868, 1869, and the early days of 1870 Congress lacked any power to enforce the Fourteenth Amendment because it hadn’t yet passed new legislation related to it. During any one of those years, Congress possessed the power of Section 3 enforcement via the authority to conduct federal impeachment proceedings. Nor is this merely an academic point—given that an impeachment proceeding for a sitting president was held during that very period of time, and neither the Anderson Court nor the current litigants in Trump v. United States contest that the February 24, 1868–launched impeachment trial of President Andrew Johnson—had it led to his conviction, and had it been brought for Incitement to Insurrection—would have precluded him running for office again. The question then, as now, is only what type of vote was required to spring such a preclusion. Anderson establishes a majority vote as sufficient.

Just so, lest a skeptic now remark that the Anderson Court cites an 1862 legislative act that arguably constituted the sole mechanism of Congress’s Section 3 enforcement powers in the years between 1866 and 1870 (inclusive), note that the Anderson Court calls the Confiscation Act of 1862 merely one that “effectively”—not expressly— “provided an additional procedure [for Congress] for enforcing disqualification.” The very fact that this 1862 act, which “made engaging in insurrection or rebellion, among other acts, a federal crime”, only “effectively” and “additional[ly]” constituted an enforcement mechanism means that it provided only a non-exclusive way for Congress to identify an insurrectionist. This in fact underscores that in 1862 impeachment proceedings were another way for Congress to make such a finding and had long been so. Had the 1862 act “formally” (de jure) rather than “effectively” (de facto) provided an enforcement mechanism for Section 3—the Anderson Court implicitly concedes—the text of the act would have said that it was the only way for a person to be disqualified from a federal ballot. Just so, the Anderson Court wouldn’t have written “additional” if there were no existing procedure for Congress to enforce disqualification in 1862. But there was: an impeachment.

But the Anderson Court did write “additional,” no matter how it paws at the dirt on the issue by somewhat lamely noting that “a successor to [the] provisions [of the Confiscation Act of 1862] remains on the books today.” Even the Court acknowledges that neither this successor nor its antecedent created an exclusive mechanism for Congress to enforce Section 3. This confirms that impeachment proceedings always constituted—and are—such a mechanism.}

In short, the question has never been whether federal impeachment proceedings against a president can spring an enforcement of Section 3, only whether a majority vote in such a proceeding is sufficient to establish a federal ballot disqualification.

5

Opportunistic readers of Anderson contend that its finding that (emphasis removed) “Section 5 limits congressional legislation enforcing Section 3, because Section 5 is strictly ‘remedial’” means that Section 5 limits Congress “to” legislation in enforcing Section 3, though of course that is neither what the Court said nor what it could have said. Why the latter? Because the very reason that Section 5 limited “only” legislation enforcing Section 3—not other means of enforcement, like impeachment proceedings—is because Section 5, as a section in a constitutional amendment, couldn’t have revoked congressional authority to disqualify candidates from future office via impeachment proceedings without expressly making that critical alteration to the text of America’s founding document, which not only didn’t Section 5 do but which no party (either the Anderson Court or Trump, qua litigant, in Trump v. Anderson or Trump v. United States) says it did.

In understanding how and why the Anderson Court established a mere majority vote of Congress rather than a super-majority vote for purposes of Section 3 enforcement, we need merely look at the text of Section 3, which says that “Congress may by a vote of two-thirds of each House [of Congress], remove…[the ballot-access] disability [of ‘having engaged in insurrection or rebellion against the United States’].”

It would be senseless as a matter of constitutional interpretation—to turn slightly on its head an observation made by the three concurring justices in Anderson—for the percentage of Congress required to establish a disability to be exactly the same as the percentage required to remove it. Indeed we find the opposite pattern established via our existing constitutional framework. To wit:

• A majority vote is needed to impeach a federal officeholder, while a two-thirds vote is needed to convict them;

• a majority vote in the Electoral College is needed to elect a president, while a two-thirds vote is needed to remove that president from office;

• a majority vote is needed to pass a bill through Congress, while a two-thirds vote of Congress is needed to overcome a presidential veto;

• probable cause is needed to indict a defendant and place them on bail, while unanimity among jurors is needed to convict or acquit a defendant and end bail; and

• a two-thirds congressional vote is needed to propose a constitutional amendment, but a three-quarters vote of all extant U.S. states is needed to ratify such an amendment.

In constitutional jurisprudence, we see this pattern repeated over and over: the initial vote percentage launching a matter requires a larger subsequent percentage to undo.

It is in this context that the Anderson Court established that a majority of Congress is required to establish any ballot disability which (under Section 3) a two-thirds majority of Congress could thereafter remove.

We might even approach this matter from a third perspective, as a means of checking our work as constitutionalists. Given that it takes two-thirds of the Senate to remove a sitting federal officeholder from office who has been (as the case may be, depending on the office) elected by the People of the United States or appointed by a President of the United States who was ex ante elected by the People of the United States, would it make any jurisprudential sense, or would it instead establish a nonsense, for a POTUS candidate without such status—that is, someone who merely, by their own bald claim, meets the bare-bones requirements for an office established in our Constitution—to also enjoy a mountainous “two-thirds” protection from being removed from a ballot?

By analogy, would our Constitution envision both convictions and initial arrests only being allowable by proof beyond a reasonable doubt? It can scarcely be contemplated.

Nor must we contemplate it, given the “majority vote” rule established in Anderson.

We might even say wisely established in Anderson, as Anderson brings disqualification into conformance with the other “stepping stone” or “step-up” processes cited above.

Indeed, even the dicta in Anderson confirm the reasoning the Court was supplying in coming to its conclusion. Consider the Anderson Court’s discussion of the vote that’s required by Congress to remove a ballot disability (emphasis added, citations omitted):

[The] final sentence [of Section 3] empowers Congress to “remove” any Section 3 “disability” by a two-thirds vote of each house. The text imposes no limits on that power, and Congress may exercise it any time, as the respondents concede. In fact, historically, Congress sometimes exercised this amnesty power postelection to ensure that some of the people’s chosen candidates could take office.

There are two points to make in response to the above excerpt.

First, we here see the Anderson Court tying a Section 3-related vote of Congress to the special status a candidate achieves in the popular imagination by virtue of being—critically, “post[-]election”—one of “the people’s chosen candidates”, in other words precisely the status (and presumably the protections) a pre-election candidate who has merely self-declared themselves eligible for office shouldn’t enjoy under Section 3 in the context of the Anderson rule. This further underscores that the apparent distinction in Anderson between a majority vote cast by Congress pre-election and a vote cast by Congress with “no limits” and at “any time” post-election is consistent with the fact that “the people” have spoken as to the latter candidate. In 2024, candidate Trump is manifestly in a “pre-election” status, having declared himself eligible for office under Section 3 irrespective of a past majority vote passed by Congress as to whether he had engaged in insurrection (which a majority of both Houses of Congress found he had).

Returning to the excerpt above, we must note, secondly, the Anderson Court’s finding that the Constitution places “no limits” on the “exercise” of Congress’s powers under Section 3 of the Fourteenth Amendment. This certainly isn’t congruent with a reading of the Anderson holding that contends that the Anderson Court—far from finding “no limits” on the “exercise” of Section 3 congressional powers—in fact says Congress must exercise that power via one type of congressional action (i.e., legislation rather than impeachment). The Anderson ruling becomes a nonsense, from this perspective.

{Note: Nor can we say the Court already addressed the impeachment mechanism in Anderson, as it manifestly did not. Nor could it have, as it was the Anderson ruling itself that reopened the matter of Donald Trump’s 2021 impeachment trial and the many votes pertaining thereto.}

And in fact such a reading is further discredited by the Anderson Court’s finding that any argument that Congress might be “forced to exercise its disability removal power before voting begins” is constitutionally “implausible” because there’s no evidence in the Constitution for any entity being able to place “such a burden on congressional power with respect to candidates for federal office.” This dictate would seem to apply with equal force to judges. If Congress is sufficiently protected in its “congressional power with respect to candidates for federal office” that it can never be “forced” to exercise that power in a particular way “before voting begins,” how could we possibly read Anderson as holding that the Supreme Court can and indeed must rule Congress in exactly this way? Either it is “implausible” that the Constitution would allow an entity to “force” Congress to suffer a “burden” on its “congressional power with respect to candidates for federal office”, or it isn’t; and in fact Anderson holds it to be especially implausible that such a burden could be imposed such that Congress must act “before voting begins”—though this is precisely the understanding of the Anderson ruling some take, inasmuch as some deem Anderson to foreclose any understanding that Congress has already acted, or could still further act, to deny Trump a place on federal ballots.

{Note: The Anderson Court finds this logic sufficiently compelling that it repeats it later on in Anderson, writing that “the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible.”}

6

Throughout Anderson, the Court is profoundly invested in ensuring that a consistent standard is established for any federal mechanism seeking to enforce Section 3.

This is a problem for those who read Anderson as devising a majority vote for one kind of Section 3 enforcement (congressional legislation) but a far higher standard—a two-thirds vote—for a much older, a universally agreed upon, and indeed a never-contested means of Section 3 enforcement (congressional impeachment).

When the Anderson Court writes of its abiding concern that, if Section 3 enforcement were simultaneously the jurisdiction of both the States and Congress, “Some States might allow a Section 3 challenge to succeed based on a preponderance of the evidence, while others might require a heightened showing”, it is expressly terming such a state of affairs constitutionally infirm.

No argument has been advanced, either in the Anderson ruling or by any litigants in the case, for why one Congress would be permitted to erase a two-thirds Section 3 enforcement vote by a prior Congress by a simple majority vote that establishes new legislation with respect to the previously impeached-and-convicted person. In fact such a reading of Anderson, or our Constitution, would fly in the face of Section 3, which establishes the same standard for removing a ballot disability (a two-thirds vote) as for establishing it in the first instance through a post-impeachment conviction.

Such evident symmetry made sense—and still does, now that Anderson unambiguously has lowered the standard for establishing a ballot disability to passing new legislation via simple majority.

This lowering, in order to preserve the constitutional framework established more than 160 years ago, necessarily lowers the standard for establishing ballot disability via impeachment to a simple majority as well. The alternative would create precisely the bizarre imbalance between Congresses that Anderson says cannot be allowed to exist between States. In fact, in practice the former imbalance would exceed the latter in egregiousness because it would, for the first time, create a lower standard for removing a disability as for establishing it in the first instance. As noted above, the history of American jurisprudence confirms that our rule of law takes the opposite approach.

A reading of Anderson that prospectively concludes it is now easier to remove a ballot disability via a simple majority in Congress than it originally was to erect it via what would be (were it to ever happen) the first successful conviction of a U.S. president via impeachment in American history would be like concluding that, instead of probable cause, the standard for arrest should be beyond a reasonable doubt whereas the standard for conviction at a first-degree murder trial should be a preponderance of the evidence.

In short, it would turn our nation’s constitutional framework upside-down—a result that longstanding and never-contested maxims of constitutional interpretation forbid.

Anderson does not, of course, have any such intention: its meaning is plain and the rule it establishes is clear.

And applying that rule to Mr. Trump, we find that he’s already suffered disqualification from the presidential ballot in 2024—and for all general election cycles thereafter.

7

The notion that Trump has already experienced disqualification is one that satisfies the professed anxieties of the Anderson Court in every particular. Indeed, the Court was—among other anxieties enumerated above—especially concerned by the prospect of a Section 3 enforcement occurring after a presidential election vote had occurred:

The disruption [to “the behavior of voters, parties, and States across the country, in different ways and at different times”] would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.

Some readers of Anderson take this to mean that no new legislation can be passed by Congress attempting to add to the existing (impeachment) mechanism for enforcing Section 3 once the first primary voter has voted in a given election cycle. Putting aside that such a view of Anderson empowers state political parties to set their first primary date as early as possible to protect their candidates from legislative disqualification—exactly the sort of “chaos” Anderson aims to avoid—we might add that federal officials such as Rep. Jamie Raskin (D-MD) already take a different view, one more in line with Anderson, in seeking to quickly pass new congressional legislation prior to the next Election Day (that is, November 5th of 2024) that specifically relates to Donald Trump.

These efforts are undoubtedly well-intentioned. But they also seem to be unnecessary.

An act of Congress, in the form of new legislation, is eternally subject not just to the prevailing political whims but also—if it must be passed “pre-voting”—the power of a political party to curtail it in ad hoc fashion by expediting even a single primary vote; the ability of a minority in Congress, indeed perhaps even a single individual, to block the timely passing of such an act via filibuster; or the promise of a sitting president to veto it (should Congress have a majority in favor of a given bill but not a vetoproof one).

In contrast, a Section 3 enforcement achieved via majority vote at an impeachment trial is definitionally “pre-voting.” It would therefore be impossible for a political party to set a primary in the next presidential election cycle prior to such a vote. Nor could a president then being subjected to the impeachment process use his or her veto power to end the Section 3 enforcement at hand. Nor can an impeachment proceeding be interrupted by filibuster. Indeed, impeachment is so clearly the preferable Section 3 enforcement mechanism that we can find no evidence in Anderson or anywhere else than anyone thinks otherwise. The premise is so taken for granted in the litigation that led to Anderson that it literally appears to go without saying.

Nor need the Anderson Court, or any future court, apprehend some notional future in which majority disqualification votes at impeachment trials that clearly allege acts of insurrection become commonplace—as in the nearly quarter-millennium history of the United States, such an occurrence has happened only once (and not coincidentally, after the only armed attack on the Capitol ever waged by a domestic paramilitary force).

There’s simply no precedent in American history for spurious use of impeachment as a Section 3 enforcement mechanism. Further, any threat, by any party, to spuriously use impeachment as a means of Section 3 enforcement would definitionally be an illegal attempt to overthrow a democratically elected government, and thus be definitionally a Criminal Conspiracy. By comparison, there is, quite troublingly, no constitutional or statutory prohibition on a political party with a majority in both Houses of Congress spuriously seeking to preclude a person from future public service via legislation, as the filibuster is only an optional extraconstitutional procedural device and the extant prohibition against bills of attainder requires there be allegation of a criminal offense.

8

Much of the confusion caused by the Anderson decision stems from the fact that all nine members of the Court agree with its holding, but only five with one particular reasoning for such a holding. This reasoning is nevertheless seen as binding, of course, because there are five adherents to it—a majority of the Court. So we must now turn to precisely what those five members of the Court have actually agreed upon.

We begin with the Court’s own statement on this point (emphasis supplied):

[The concurring justices] 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.

Thus ends our analysis of the distinction between the nine justices’ points of concord and the particularities of their 5-4 disagreement. The five justices hold—by their own grammatical emphasis in the sentence above—that “Congress” (and only “Congress”) has the power to enforce Section 3. This is the very same position taken by this essay.

Only Congress has power to pass federal legislation; this is true. By the same token, only Congress has authority to launch and exercise the impeachment powers that no one appears to have ever disputed are a co-extant mechanism for enforcing Section 3.

And yet, despite this—and this author cannot explain why it should be so—it appears the only place in Anderson we find the submission that only legislation is acceptable as a means for Congress to enforce Section 3 is in the ruling’s concurring opinions, which fact naturally encompasses the observation that these views don’t hold force of law.

Justice Barrett, in her solo concurrence, writes that the petition in Anderson “does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced. The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond.” But the Justice doesn’t quote what language in the majority opinion she’s referring to in making her extraordinary claim regarding “exclusivity.”

A search of the entire text of the Anderson decision brings up only two appearances of the word “exclusive”—the one by Justice Barrett, and another in which the majority simply confirms that States have “exclusive” sovereign power over their own elected offices (not a contested point in Anderson).

So we must review, instead, the 22 instances of the word “legislation” in Anderson to deduce what precisely Justice Barrett is referring to. We find only ten such instances in the majority’s written decision, and only four that answer to her claim above: (1) the majority noting, as uncontested fact, that “Section 5 confers on Congress ‘power to enforce’ those [Section 3] prohibitions, along with the other provisions of the Amendment, ‘by appropriate legislation’”; and (2) the majority noting that the Constitution “empowers Congress to prescribe how those [Section 3 prohibition] determinations should be made”, with the “relevant provision” of the Constitution for such empowerment—not such prescription but such empowerment—being Section 5.

{Note: The third and fourth of these four uses of the term “legislation” will be discussed anon.}

The former of the first two uses of the term “legislation” is again uncontested—as it just quotes the plain language of Section 5—whereas the latter is considerably more complicated, because if Congress’s “empowerment” to enforce Section 3 (passed 1866) resides only in the passing of “appropriate legislation” under Section 5 (passed 1866), it means that the United States Congress, which impeached Andrew Johnson in 1868, didn’t have the power at that time to, by convicting him, preclude him from running for President of the United States again. Why? Because it didn’t pass post-1866 legislation that the Anderson majority recognizes as qualifying under Section 5 until 1870.

Which means, of course, as we cannot read any Supreme Court decision in a way that renders it nonsensical, that in fact the Anderson majority must have held that Section 5 is only the “relevant provision” for attempts by Congress to “prescribe” enforcement mechanisms for Section 3, not for Congress to enforce Section 3 at all—as clearly our Congress possessed the plenary power in 1868 to enforce Section 3 (passed in 1866) by impeaching and convicting Johnson, which notably it only failed to do by one vote.

While the word “legislation” again appears in the Anderson Court’s citation of a single senator’s formally expressed opinion, during the 41st Congress (1869-1871), that the U.S. Constitution “provided no means for enforcing” 1866’s Disqualification Clause (contained in Section 3 of the Fourteenth Amendment), that senator—Senator Lyman Trumbull of Illinois—not only sat as a juror at President Johnson’s 1868 impeachment trial but cast a vote in it (as it happened a vote to acquit him, meaning Trumbull knew that but for his vote Johnson would have been convicted). There can be no conclusion, therefore, but that by 1868 Senator Trumbull had acknowledged that there were means established in the original text of the U.S. Constitution for disqualifying a president from future office. He sat on a jury empowered in precisely that way. But in fact the full story of Senator Trumbull even more compellingly makes this point, beyond his mere presence on the Johnson jury and his willingness to cast a vote as a member of it.

9

Per the text of The Opinion of the Honorable Lyman Trumbull (1868), Senator Trumbull voted to acquit President Johnson because he felt the evidence of criminal conduct by Johnson was not just insufficient but actually nonexistent. This led him, ironically, to publicly confirm a belief that impeachment of Johnson would disqualify him from future office, thus establishing his correct view that impeachment was a de facto enforcement mechanism for Section 3 (which had been passed two years earlier):

Blinded by partisan zeal, with such an example [as the hypothetical conviction of President Johnson at his 1868 impeachment trial] before them, they [a future majority of the House and two thirds of the Senate] will not scruple to remove out of the way any obstacle to the accomplishment of their purposes, and what then becomes of the checks and balances of the constitution, so carefully devised and so vital to its perpetuity?

Had Senator Trumbull believed that convicting President Johnson on May 26, 1868 did not preclude Johnson from simply running for President of the United States again in the next election—then scheduled for November 3, 1868, just 160 days hence—would he have said that convicting Johnson “remove[d] out of the way any obstacle to the accomplishment of [Johnson’s political opponents’] purposes”? Of course not. Nor would he have insisted that he had to vote to acquit Johnson, lest “the checks and balance of the constitution” be “all gone”—for indeed if convicting Johnson at an impeachment trial merely delayed the continuation of Johnson’s political project for only 160 days, it would in no sense eviscerate the checks and balances in the United States Constitution.

And would Senator Trumbull have uttered the lines, in support of his vote to acquit Johnson, “In view of the consequences likely to flow from the day’s proceedings….I tremble for the future of my country”, were those consequences just a five-month abatement of Johnson’s term in office? Once again, we must answer “Of course not.”

But in fact we needn’t be so precious—or so focused on Senator Trumbull—as all this.

We need simply look at the full text of Section 3… of Article I of the Constitution.

Section 3 of Article I says that “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”

So Senator Trumbull had no doubt whatsoever that, in 1868, impeachment for an act of insurrection was a valid enforcement mechanism for disqualification of a President of the United States from again holding any public office in the United States. It was for this reason that he “trembled” for his country at the prospect of removing Johnson from office and thereby permanently ending his political career (rather than merely for five months). It was for this reason that he claimed that convicting President Johnson would permanently remove him as an obstacle to the designs of his political opponents. It was for this reason that he said convicting Johnson would permanently—and not just temporarily—end all of the checks and balances provided for within the Constitution.

While the senator wasn’t sitting in judgment of a case involving an act of insurrection (which of course would have only diminished, not heightened, all of his objections), Article 10 of the original articles of impeachment against President Johnson in 1868 did allege a president had “with a loud voice [and] certain intemperate, inflammatory, and scandalous harangues….utter loud threats and bitter menaces…against Congress [and] the laws of the United States duly enacted thereby, amid the cries, jeers and laughter of the multitudes then assembled and within hearing”—which certainly sounds like an allegation that is at least adjacent to the “incitement of insurrection” then-president Donald Trump was alleged to have engaged in on January 6th, 2021.

But there are two other relevant references to “legislation” in the Anderson ruling.

The majority notes that as and when Congress elects to pass legislation to enforce Section 3, it “‘must tailor its legislative scheme to remedying or preventing’ the specific conduct the relevant provision prohibits”, and that this “legislative scheme” must reflect “‘congruence and proportionality’ between preventing or remedying that conduct ‘and the means adopted to that end.’” Rather confusingly worded, these two statements seem to import that, perhaps to honor the concerns expressed in 1868 by Senator Trumbull, Congress’s attempts to enforce Section 3 must be “tailor[ed]” to prevent “specific conduct” and employ a means that is appropriate and proportional to the end intended—a fairly standard test for the constitutionality of a federal action.

Which begs the question, are articles of impeachment part of a “legislative scheme”?

Certainly, none doubt that an article of impeachment meets the Anderson standard of being tailored to prevent specific conduct and—where the allegation involves an act of insurrection—is definitionally proportional to preventing any recurrence of the conduct at issue. But, again, are impeachment articles part of a “legislative scheme”?

They are.

By its very definition, a “legislative scheme” involves multiple actions by a legislative body rather than just one; there is, for instance, no single statute Congress could now pass regarding enforcement of Section 3 that would by itself constitute a “legislative scheme.” So that requirement of Anderson is either already present because Congress has passed more than one statute the Court deems relevant to judicial consideration of Section 3 (for instance, the Confiscation Act of 1862 and the Enforcement Act of 1870) or because of one or both of these acts, coupled with the power of impeachment granted exclusively to Congress—the federal legislative body the Constitution erected in Section 1—together constitute a preexisting “scheme.”

The only thing we know for certain is that, as already noted, Anderson could not mean that some single future congressional act would alone constitute a legislative scheme under Anderson, and that in fact it’s considerably more likely a coupling of statutory authority and legislative powers—e.g., a statute and the Impeachment Clause—form such a “scheme” than that only one genus of already exercised federal authority does.

Impeachment proceedings—which involve more than articles of impeachment and a subsequent impeachment trial, but also investigatory processes preceding the former that necessarily require the exercise of the congressional subpoena power—aren’t just inarguably a legislative function, but inarguably constitute legislative acts when and as, as was the case in the articles of impeachment brought against Donald Trump in 2021, they propose the “disqualification [of Donald Trump] to hold and enjoy any office of honor, trust, or profit under the United States.” That proposal for a legislative act by Congress at the conclusion of the impeachment trial of Donald Trump turned the article into just what Sen. Trumbull acknowledged the 1868 articles of impeachment against then-President Andrew Johnson were: a legislative action that was “fraught with greater danger” than even some “recent legislation” intended to curtail and limit Johnson’s power, which legislative action was made up of legislative “acts” that would together function as an “instrument” to “produce…a result” more far-reaching than any statute. In short, we find in the words of Trumbull the Anderson Court sought to adhere to (despite their lack of legal authority) no evidence that Trumbull deemed impeachment less a part of a legislative scheme than a statute, but rather a greater one.

Indeed, Senator Trumbull’s speech, in contextualizing impeachment within a political framework of other legislative acts such as federal statutes, arguably gifted us as fine a description of a multi-part “legislative scheme” that is intended by certain legislators to “produce” desired “results” as we could hope to find in the congressional record.

We might go so far as to say that Trumbull voted to acquit President Johnson because he saw Johnson’s impeachment proceedings as part of a “legislative scheme” whose intended “result” he had decided was unacceptable.

10

Had the authors of the 1868 articles of impeachment not asked for President Johnson to be disqualified from future office, but merely precluded from the presidency for as brief a term as five months—give or take a couple weeks—and had the authors of the 2021 articles of impeachment not asked for President Trump to be disqualified from future office, not only would both have failed to meet the Anderson test for a legislative act (that it be “tailor[ed] to specific conduct” and “congruen[t] and proportional[ ]” to the conduct), but these articles arguably wouldn’t have comprised a legislative scheme at all, as they would have been focused exclusively on a present change in status—the removal of a president from the White House—rather than a future legislative “result” (a disqualification from public office for the duration of a politician’s life or until its revocation through a two-thirds vote of Congress under Section 3 of the Fourteenth Amendment).

But in fact the authors of the 2021 articles of impeachment against Donald Trump did frame those articles as a legislative act, and therefore as part of a legislative scheme whose process—the vote threshold it requires—the holding in Anderson has revisited.

Conclusion

The unanimous holding of Trump v. Anderson is easy to find in the Court’s written opinion, just as it should be: “[T]he responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.”

The Anderson Court doesn’t express here that it’s creating a new authority, but rather that it’s merely recognizing an old one. And while it acknowledges that authority has in the past, and could in the future, be exercised via congressional legislation, it does not—and could not—concurrently state that this is the only path Congress can take in enforcing Section 3 of the Fourteenth Amendment, as that would be manifestly untrue.

Neither the Anderson Court, nor any of the litigants in Anderson or Trump v. United States, contest impeachment as a Section 3 enforcement mechanism. In fact, Trump himself, in the latter case, expressly insists on it to the exclusion of any other option.

The Anderson litigants should therefore file for a rehearing in the case on precisely these grounds: that their understanding of Section 3 enforcement post-Anderson now incorporates not just the Trump filings in Trump v. United States but the decision of the Supreme Court to hear those latter arguments rather than dismiss them outright.

This isn’t a proposal to have the Anderson litigants fruitlessly appeal to the three justices who concurred in the holding of Anderson but demurred from its reasoning.

In fact, those justices’ demurral doesn’t touch upon the primary subject of this essay.

In a concurrence apparently written by Justice Sotomayor, the three justices often termed “liberals” by commentators make clear their view that the majority opinion in Anderson only addressed “challenges [to Donald Trump’s appearance on the 2024 presidential ballot] that might arise in the future” (emphasis supplied), a view at odds with the one expressed here: that Donald Trump was already disqualified from the 2024 presidential ballot in the past, specifically as of February 13, 2021. This position doesn’t depend on any new “challenge” or (to again quote Justice Sotomayor) “future controversy” that might arise regarding Trump’s candidacy; rather, it relates to the question of whether the consequences of an event now over three years in the past have ever received a proper judicial dispensation by any court. As to this point, we can note that Sotomayor cites City of Rome v. United States (1980), which stands in part for the proposition that Reconstruction amendments, including the Fourteenth Amendment, “were specifically designed as an expansion of federal power and an intrusion on state sovereignty” (emphasis added).

This is precisely the view advanced in the instant essay. The impeachment power of the federal legislative branch preexisted the Reconstruction amendments, and thus the Fourteenth Amendment was “expanding” a disqualification-from-office legislative scheme that was already extant. That expansion underscored—rather than establishing as a sui generis revelation—the fact that such disqualifications from federal office are and always have been the exclusive province of Congress, not officials in the States.

In view of this, this author is as bewildered at the words of Justice Sotomayor as some of those of the Anderson majority. When Justice Sotormayor writes (emphasis added and internal quotes omitted), “[T]he majority says [Congress] must enact legislation under Section 5…to ascertain what particular individuals should be disqualified [from federal office]”, she’s making a claim we don’t hear from the Anderson majority.

Where in Anderson does it say that the only means for “ascertaining when particular individuals should be disqualified” from federal office is an as-yet-unwritten piece of federal legislation? No Supreme Court could rule this, of course—nor did Anderson—as to do so would be to erase all references to impeachment in the Constitution, for clearly impeachment may be used to “ascertain when particular individuals should be disqualified” from federal office. It must not be, but it may be; it is forever permitted.

May Congress enact legislation to ascertain which individuals should be disqualified from federal office? Yes. Must it do so before any person can be disqualified from federal office? No—and Anderson doesn’t say as much. It merely revisits the vote required for such disqualification, in doing so clearly lowering its threshold to a majority.

Just so, the new submissions made in Trump v. United States make clear that it is now Trump himself who has authored a new phase in the discussion of his disqualification from office—one that centers on impeachment and which puts in an immediate “state of play” precisely how Anderson inflects our understanding of that process.

As Justice Sotomayor rightly concludes—making a submission the five justices with whom she is disagreeing could hardly contest—the five-person Anderson majority “reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision” (emphasis added).

The effort to disqualify Donald Trump from federal office that must begin right now isn’t one that springs under Section 3, but Anderson and an impeachment proceeding that has already concluded. It can be raised by either the Anderson litigants or, for that matter, by any duly elected or appointed state elections official who has read Anderson and understands its import in the way I do and that I have exhaustively outlined here.

{Addendum: On social media, Attorney Tim Hogan offers an additional observation that is worth repetition here: “The parties [in Anderson] and SCOTUS seem unable to admit that Congress already passed two laws that can remove all insurrectionists from office and ban them for life: 18 U.S. Code § 2383 (Rebellion or Insurrection) and 18 U.S. Code § 2381 (Treason).” The larger question of whether it is accurate for the Anderson Court to remark, as it does, “Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3”, contributes to the essay above in this way: it makes it harder for the Supreme Court to substantiate any future claim, should it make one, that at present there is no “legislative scheme” involving enforcement of a Section 3 disqualification. In fact, besides the acts of Congress that the Anderson Court acknowledges were enacted in the 1800s, and the corollaries of these that the Court acknowledges exist still today, and the impeachment framework established by the original text of the Constitution in 1789 and never repealed or amended, such a scheme is evident, as Attorney Hogan notes, in federal criminal statutes that would be eligible for either independent enforcement by DOJ—contra the current claims by Trump qua litigant—or under the “high crimes and misdemeanors” language within the Impeachment Clause, which stands ready for use by Congress, in a well-integrated legislative scheme, should Congress choose to make any of its articles of impeachment dependent upon or reflective of the language of federal criminal statutes that allow for disqualification as a punishment.}

---

If you’re interested in reading more research and writing from Seth Abramson, you can check out his Top 20 History substack, Retro, by entering your email address in the space below: