Everyone seems to be offering a view on Trump v. Anderson, the Supreme Court's presidential disqualification case from last term, so I'll offer one too (different from my earlier suggestions). I agree with critics that the Court's opinion does not hold together well on originalist grounds and instead seems more directed to the perceived problem of presidential disqualification being determined piecemeal at a state-by-state level. Andrew Hyman's recent post on the federal insurrection statute got me thinking about whether the case could be resolved as a matter of preemption, without reaching any of the hard constitutional questions. 28 U.S.C. 2383 provides:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
Originally passed in 1862 and revised in 1878, the last part of the statute seems clearly an implementation of Section 3 of the Fourteenth Amendment. It gives at least a partial answer to the question "who decides?" whether a potential officeholder is disqualified for participating in insurrection: that is (or at least that can be) decided in a federal criminal prosecution.
What if states also purport to decide the disqualification issue? Section 2383 doesn't directly exclude states from deciding, so on a narrow view of preemption perhaps states and the federal government could make parallel and opposing determinations of disqualification. But at least under modern preemption law, a state law is preempted if it's an obstacle to the purpose of the federal law. And we might conclude that a purpose of the federal law is to establish a federal pathway to disqualification to the exclusion of piecemeal state-by-state determinations (for the reasons the Supreme Court gave in its opinion). It's often said in preemption determinations that a key question is whether the federal statute meant merely to establish a baseline to which states could add if they wanted, or whether instead the federal statute was understood as a uniform national standard. Again, for the policy reasons the Court described, at least for federal offices, and especially for the presidency, a single federal standard makes the most sense. Thus one could say that Section 2383 established the way to invoke insurrection-based disqualification, to the exclusion of other routes to disqualification through state courts and procedures.
Suppose that after a number of controversies over who is a natural born citizen (and thus eligible for the presidency), Congress established a procedure under which a candidate for the presidency, wishing to challenge the natural-born status of a competitor, could bring a claim for declaratory relief in a designated federal court. Would this preempt alternative channels at the state level for excluding candidates from the ballot on this ground? I think it might. The purpose of the hypothetical statute, one might say, is to establish a single forum to resolve the issue (even if the statute does not say so in so many words). My suggested reading of Section 2383 is parallel, but perhaps stronger given the potentially difficult factual issues involved in assessing participation in insurrection.
William Baude and Michael Paulsen discuss and reject something like this argument in their extended assessment of presidential disqualification under Section 3, and initially I found their argument persuasive. They frame the issue as whether conviction under Section 2383 is a prerequisite to disqualification, and I think the answer is likely no. There might be other federal pathways to disqualification. But thinking of the matter as one of preemption — especially in light of the Court's concern about multifarious state-level determinations — makes me think it's plausible that Section 2383 excludes state pathways to disqualification. And that conclusion would mostly get to where the Court wanted to be in Trump v. Anderson, without having to squeeze the result out of the Constitution (while also avoiding difficult questions like whether Section 3 applies to the presidency).
UPDATE: In response, Josh Blackman points to this paper (with Seth Barrett Tillman): What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383? (2021 U. Ill. L. Rev. Online 190 (April 30, 2021)). Here is the abstract:
President Trump’s term in office has drawn to a close, and the Biden administration has begun. Attorney General Merrick Garland will soon face a difficult decision: Should he pursue a criminal prosecution of Trump for his conduct leading up to, and during the events of January 6, 2020? One possible basis for prosecution would be under the Insurrection Act, 18 U.S.C. § 2383. This statute provides:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
In this Article, we take no position whether Trump committed the substantive offenses of inciting or engaging in an insurrection. Rather, we will analyze the potential legal consequences of convicting Trump under this statute. Specifically, what would it mean for Trump to be “incapable of holding any office under the United States.” Would this punishment disqualify Trump for serving a second term as President, should he be elected?
Attorney General Garland’s decision will be complicated because there are no settled authorities to answer these legal questions. He will also face tough political choices. Any prosecution could be seen as an effort to disqualify the presumptive Republican nominee for President in 2024. In effect, a Biden Administration prosecution could knock out its most likely political opponent. A substantial segment of the public may view the Attorney General as disenfranchising tens of millions of voters. This decision is fraught with difficulty.
However, we think Garland’s decision is simpler in one regard: Trump’s conviction under § 2383 would not prevent his serving in the White House again. In our view, if Trump were convicted of violating § 2383, he would be disqualified from holding appointed federal positions. However, that conviction would not disqualify him from holding the presidency or any other elected federal position. We think our reading is correct as a matter of original public meaning with respect to the Constitution of 1788. And this conclusion is unchanged by Sections 3 and 5 of the Fourteenth Amendment. Our position is supported by modern Supreme Court and other federal court precedent.
In our view, even if Trump were convicted of violating § 2383, he would not be disqualified from serving a second term as President.
This Article proceeds in five parts. Part I explains that under the Constitution of 1788, Congress cannot add qualifications for elected federal officials. To illustrate our position, Part II analyzes an anti-bribery statute that the first Congress enacted in 1790. This statute imposes additional qualifications on certain federal positions. But, we argue, it should not be read to impose additional qualifications on elected federal positions. In Part III, we consider whether our general position is altered by the ratification of the Fourteenth Amendment. In other words, do Sections 3 and 5 of the Fourteenth Amendment give Congress the power to impose additional qualifications on holding elected federal positions? Part IV traces the history of the Insurrection Act, 18 U.S.C. § 2383. The Insurrection Act has remained virtually unchanged since President Lincoln signed it into law in 1862. This law should not be read to impose additional qualifications on elected federal officials. Finally, in Part V, we consider an amended, hypothetical version of § 2383 in which Congress expressly invoked its powers under Sections 3 and 5 of the Fourteenth Amendment. Even under this hypothetical statute, we still do not think Congress could disqualify former President Trump from serving a second term in office.
I don't necessarily disagree. My post above was assuming without deciding that § 2383 disqualification applies to the President.
Posted at 6:11 AM