This Report summarizes an opinion issued on March 4, 2024 (Part I); and a case granted review on February 28, 2024 (Part II).
Opinions
Trump v. Anderson, 23-719. In a per curiam opinion, the Court held that the states do not have authority to enforce Section 3 of the Fourteenth Amendment against federal officeholders and candidates; Section 3 may be enforced against federal officeholders only through legislation enacted by Congress. Section 3 provides that “[n]o person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
A few months before the 2024 Colorado presidential primary election, six Colorado voters filed a petition in state court contending that then-President Donald Trump’s organization and incitement of the crowd that breached the Capitol on January 6, 2021, rendered him ineligible to serve as President again under Section 3. The voters sought an order prohibiting the secretary of state from including former President Trump on the presidential primary ballot. After a five-day trial, the state district court found that former President Trump had engaged in insurrection within the meaning of Section 3, but it held that Section 3 does not apply to the office of the President. The Colorado Supreme Court affirmed the district court’s factual finding, but reversed its operative legal conclusion. It held that Section 3 does apply to the President, and it ordered the Colorado Secretary of State not to list former President Trump’s name on the 2024 presidential primary ballot. Through a per curiam opinion, the U.S. Supreme Court reversed.
Beginning with the premise that the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy” and that its provisions “embody significant limitations on state authority,” the Court pointed to Section 5, which provides that Congress “shall have power to enforce, by appropriate legislation, the provisions of this article.” The Court concluded that, in assessing whether Section 3 “applies to a particular person,” Section 5 “empowers Congress to prescribe how those determinations should be made.” The Court then stated that “[t]his case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”
In reaching that conclusion, the Court noted that states entered the union with the reserved power to govern election of state officeholders, which the Fourteenth Amendment did not withdraw. But “[s]uch power over governance . . . does not extend to federal officeholders and candidates”: “powers over their election and qualifications must be specifically ‘delegated to, rather than reserved by, the States.’ U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 803–804 (1995).” The Court then observed that “the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States.” “The only other plausible constitutional sources of such a delegation,” found the Court, “are the Elections and Electors Clauses, which authorize States to conduct and regulate congressional and Presidential elections, respectively. See Art. I, §4, cl. 1; Art. II, §1, cl. 2. But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. Granting the States that authority would invert the Fourteenth Amendment’s rebalancing of federal and state power.” (Footnote omitted.)
The Court next found an absence of “any tradition of state enforcement of Section 3 against federal officeholders,” in contrast with an established tradition of enforcement by Congress. For example, Congress enacted the since-repealed Enforcement Act of 1870 and the Confiscation Act of 1862, which criminalized insurrection and imposed a penalty of disqualification from federal office. Further, ruled the Court, because Section 5 is “remedial,” it limits even congressional legislation enforcing Section 3. Any enforcement legislation must “tailor its legislative scheme to remedying or preventing” the specific conduct Section 3 prohibits. Yet, noted the Court, “[a]ny state enforcement of Section 3 against federal officeholders and candidates [ ] would not derive from Section 5, which confers power only on ‘[t]he Congress.’ As a result, such state enforcement might be argued to sweep more broadly than congressional enforcement could under our precedents. But 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.”
Finally, the Court reasoned that permitting state-by-state enforcement of Section 3 against federal officeholders would risk a “patchwork” of inconsistent results flowing from differing views of the merits or variations in state law and procedure. That patchwork which “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. U.S. Term Limits, 514 U.S., at 822.” The Court added that “[t]he disruption 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.”
In a separate opinion concurring in part and concurring in the judgment, Justice Barrett agreed that the states lack power to enforce Section 3 against Presidential candidates, but disagreed that it was necessary for the majority to “address the complicated question of whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
Similarly, in a separate joint opinion concurring in the judgment only, Justices Sotomayor, Kagan, and Jackson also agreed that the states lack power to enforce Section 3 against Presidential candidates, but disapproved the majority’s decision to further hold that Section 3 may be enforced “only when Congress enacts a particular kind of legislation” pursuant to Section 5. “In doing so,” these Justices stated, “the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily[.]” The concurring opinion maintained that nothing in Section 3’s “unequivocal bar suggests that implementing legislation enacted under Section 5 is ‘critical.’” Indeed, the concurring Justices noted, “[i]t is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”
Justices Sotomayor, Kagan, and Jackson also asserted that “[a]ll the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation. Similarly, other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation. See, e.g., Art. II, §1, cl. 5 (Presidential Qualifications); Amdt. 22 (Presidential Term Limits).” (Citations omitted.) In the end, the concurring Justices concluded that, “[a]lthough we agree that Colorado cannot enforce Section 3”—because it would “create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles”—”we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision.”
Cases Granted Review
Trump v. United States, 23-939. The Court will resolve “whether and if so to what extent a former President enjoys presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” In 2023, a District of Columbia federal grand jury indicted former President Donald Trump on four conspiracy and obstruction charges based on alleged efforts to discredit the 2020 election results, organize alternative slates of electors in certain states, and pressure the Vice President and Congress to certify this alternative slate on January 6, 2021. President Trump had been impeached and acquitted by the Senate on an article of impeachment relating to some of the same alleged conduct tied to the January 6th violence at the Capitol. He moved to dismiss the indictment based on an asserted absolute presidential immunity—arguing that the indictment improperly sought to review official acts he took as President—and on the Impeachment Judgment Clause and related “principles of double jeopardy,” among other grounds. The district court denied the motion in full, and on appeal, the D.C. Circuit affirmed.
As to immunity, the D.C. Circuit distinguished the President’s well-settled absolute immunity from civil liability for official acts—including conduct falling within the “‘outer perimeter’ of his official responsibility,” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982)—from the former President’s claim of immunity from criminal liability, an issue of first impression. Former President Trump offered three reasons to extend his civil immunity to the criminal context: (1) separation-of-powers principles limiting the judicial branch’s review of executive action, (2) functional policy considerations, such as potential intrusions into Executive Branch authority or the possible chilling effect on executive action, and (3) the Impeachment Judgment Clause, which, according to former President Trump’s reading, allows for the President’s criminal prosecution only after impeachment and conviction in the Senate.
The court of appeals rejected each reason in turn. Reviewing separation-of-powers cases following from Marbury v. Madison and related judicial and legislative immunity case law, the court concluded that some discretionary actions might be immune to review, but because the President lacked any discretion to violate generally applicable federal criminal laws, no categorical immunity existed. (The court of appeals cast doubt on, but did not decide, former President Trump’s assertion that the conduct alleged in the indictment was official Presidential action.) The court was skeptical that the specter of future criminal liability, even through bad faith politicized prosecutions, would chill executive action because past Presidents have understood themselves subject to potential criminal investigation and prosecution for official acts. And in any case, found the court, the countervailing policy considerations against shielding unlawful presidential efforts to stay in power outweighed such concerns.
Finally, the court found that the Impeachment Judgment Clause was consistent with the President’s potential criminal liability for impeachable conduct. That clause limits the consequences of a conviction after impeachment to removal and disqualification from federal office, “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, and Punishment, according to the Law.” U.S. Const., art. I, §3, cl. 7. Emphasizing the “nevertheless” term, the court interpreted the clause to clarify that the limited political penalty the Senate could impose upon conviction did not derogate from otherwise available criminal penalties. It did not, contrary to the former President’s argument, limit criminal liability only to those officers convicted by the Senate. The court further emphasized that the clause was inconsistent with absolute immunity, since it expressly contemplates criminal proceedings in certain circumstances. The court of appeals relied on the same reasoning to reject former President Trump’s argument that the Impeachment Judgment Clause incorporated “principles of double jeopardy,” such that his Senate acquittal barred future prosecution. Moreover, the court held, because impeachment is a political, not a criminal proceeding, and because the indictment does not charge the same offense as the 2021 article of impeachment, former President Trump’s argument failed under conventional double jeopardy jurisprudence.
In an unusual move, the D.C. Circuit directed the clerk to issue the mandate within 6 days, so that the district court trial could proceed, unless former President Trump sought a stay of the mandate from the Supreme Court. Former President Trump accordingly sought such a stay pending resolution of a petition for certiorari and additionally asked for a stay pending resolution of any petition for rehearing en banc. In arguing for a likelihood of success on the merits, his application rests entirely on his absolute immunity claim and its related arguments about separation of powers and chilling presidential action. Principally, the application criticizes the D.C. Circuit’s treatment of Marbury v. Madison and its progeny, arguing that courts have never subjected the President’s official actions to review, only the acts of subordinate officers, and that official acts could not be treated as “ministerial” and non-discretionary under Marbury by presuming a lack of discretion to violate criminal law. The application lists controversial, potentially criminal, acts of prior Presidents and emphasizes the lack of any consequent prosecutions as evidence of a presidential immunity in constitutional tradition. And it underscores the risk of politicized prosecutions of presidential action in the modern partisan environment, arguing that the Framers anticipated this danger and crafted the Impeachment Judgment Clause as a core structural check. Former President Trump’s irreparable harm argument also discusses his claim based on the Impeachment Judgment Clause and principles of double jeopardy, as well as First Amendment harms associated with the limits a criminal trial would place on his presidential campaign.
Special Counsel Jack Smith, representing the United States, asked the Court to deny the stay or treat it as a petition for writ of certiorari, grant the petition, and schedule argument for March 2024. The Court largely followed the Special Counsel’s latter suggestion, but scheduled argument for the week of April 22, 2024, and directed the D.C. Circuit to continue withholding its mandate in the meantime. The Court’s certiorari grant is limited to President Trump’s immunity claim, seemingly leaving in place the D.C. Circuit’s decision on impeachment acquittal and double jeopardy principles.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Theodore McCombs, Supreme Court Fellow
- Brian Lanni, Supreme Court Fellow
The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services.
Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.
