At Lawfare, Ned Foley: Can Congress Disqualify Trump After the Supreme Court’s Section 3 Ruling? From the introduction:
The most important question raised by the Supreme Court’s decision in Trump v. Anderson, which forbids states from barring Trump from the ballot on the ground that only Congress can enforce the Constitution’s disqualification of insurrectionists from federal offices, is exactly how Congress is entitled to enforce this disqualification.
Essentially, there are two different ways to read the Court’s cryptic per curiam opinion. One is that Congress must exercise its power granted in Section 5 of the 14th Amendment to enact a statute specifically tailored to enforcing the disqualification provision in Section 3 of the amendment—and that, pursuant to the Court’s previous jurisprudence concerning the scope of this Section 5 power, this congressional legislation must be “congruent and proportional” to the substance of the Section 3 disqualification.
The other possible reading of the per curiam opinion is that this kind of congressional legislation is a prerequisite for any type of judicial or administrative enforcement of Section 3 for federal offices, but it is not a prerequisite for other ways that Congress constitutionally may enforce Section 3.
And the key point from later on:
. . . Because the per curiam never mentions the 12th Amendment joint session of Congress—or the 20th Amendment or ECRA—it remains less than fully clear whether the Court really intends to require Congress to enact “congruent and proportional” legislation under Section 5 tailored specifically to Section 3 before Congress under the 12th and 20th Amendments can constitutionally refuse to inaugurate a presidential candidate whom Congress determines to have been an oath-breaking insurrectionist. One can argue based on all of the above that, yes, this is the Court’s intent. But one can also argue that the Court’s silence on this crucial point must mean that the Court has left open the possibility that congressional enforcement of Section 3 in the context of a 12th Amendment joint session is much more like congressional enforcement of Section 3 pursuant to each chamber’s Article I, Section 5, power to judge the qualifications of its own members-elect, as well as much more like congressional enforcement of Section 3 in the context of a House impeachment and a Senate trial. On this reading of the per curiam opinion, all of its language about the necessity of Section 5 legislation for the enforcement of Section 3 applies to institutions other than Congress itself: Federal courts and federal agencies, like states, may not on their own initiative disqualify individuals from holding federal office on Section 3 grounds unless and until Congress has enacted “congruent and proportional” legislation for the purpose of such judicial or administrative enforcement of Section 3. But the liberals overread the per curiam opinion, given its silence on the specific matter, when they decry the per curiam’s language as blocking Congress from exercising its own other constitutional powers to enforce Section 3. After all, the joint session of Congress is just as “unique” a constitutional provision granting special powers to Congress other than the enactment of legislation (applicable only to presidential elections) as is Article I, Section 5 (applicable only to congressional elections), or indeed the impeachment process (applicable only to severe misconduct of federal officers).
From an originalist perspective, if the 12th Amendment allows Congress to refuse to certify candidates who are not qualified to hold office under the original Constitution (I'm not sure it does, but if), then I don't see how Congress could not have power to refuse to certify candidates who are not qualified to hold office under Section 3. Congress either has power to block non-qualified candidates during the counting of the electoral votes, or it doesn't. Section 3 doesn't say anything about that.
On the merits, as a tentative view: the Amendment doesn't say anything expressly about a power to refuse to certify non-qualified candidates. But the Amendment implies that in the case of a non-qualified candidate winning a majority of electoral votes, the Vice President-elect will serve as President. (The Twentieth Amendment is more express on this point.) This further implies that someone has power to bar a non-qualified candidate from taking office, and it seems that most logically that "someone" is Congress.
Posted at 6:12 AM