The controversy over the strenuous efforts to keep Donald Trump off the ballot turns largely on the complex interpretive issues found in Section 3 of the Fourteenth Amendment. One such question asks how its substantive commands are enforced. The last sentence of that section—“But Congress may by a vote of two-thirds of each House, remove such disability”—suggests that its enforcement is a task for Congress. The many supporters of Trump’s disqualification know that it makes no sense for Congress to have the last say in a presidential election, whose outcome depends on a set of elaborate procedures that at no point intersect with the activities of Congress. So either they ignore that provision, as does New York Times columnist David French in his broadside against Trump, or they claim that the Fourteenth Amendment is “self-executing,” as does Michael Luttig, a former Fourth Circuit judge who is now one of Trump’s most determined opponents. On this view, that provision can be enforced either with a state court, as in Colorado, or by the ruling of a secretary of state, such as Maine’s Shenna Bellows, at the instance of any citizen or group. The next chapter is now certain to unfold before the United States Supreme Court, which may choose to endorse the current disarray until some later time when it may (or may not) issue some authoritative opinion to end the legal dispute, but not the political uproar, once and for all.
One key question therefore is just how to interpret the term “self-executing.” That issue is not unique to Section 3 but can arise in connection with any substantive provision of the Constitution that purports to address the rights and duties of individual citizens. Right now, parallel litigation involves the takings clause of the Constitution, found in the Fifth Amendment, that says (in the passive voice, no less): “nor shall private property be taken for public use, without just compensation.” In its inception, the hidden actor under the Fifth Amendment was the United States, as decided by Chief Justice Marshall in Barron v. Baltimore (1833). But after the adoption of the Fourteenth Amendment in 1868, a key decision of Justice John Marshall Harlan, Chicago, Burlington & Quincy Railroad Company v. Chicago (1897), held that its due-process protections covered the right to receive just compensation against the imposition of confiscatory rates as specified under the Fifth Amendment.
The next question is just how these rights are enforced. It is often asserted that the text of the Constitution creates a private right of action in the party whose property is taken ex proprio vigore—by its own force—so that no legislation of any sort is necessary to allow a private suit to go forward. There are, of course, provisions of the Fourteenth Amendment that are even more self-executing. Section 1 of the Fourteenth Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Now there is no need for any statutory authorization at all. The amendment, by its own words, confers citizenship on the designated individuals. So, when Section 5 of the Fourteenth Amendment states that Congress shall have the power to enforce this amendment with appropriate legislation, it means that Congress can prevent other persons or any state from removing their rights as citizens.
The need to create private rights of action does, unfortunately, introduce a further complication. The constitutional protection against confiscation runs smack into the principle of sovereign immunity, which is as much a part of the Anglo-American tradition as the prohibition against uncompensated takings. Thus, in Chisholm v. Georgia (1793), a divided Supreme Court held that the defense of sovereign immunity to an action to collect a debt owing for goods that the plaintiff had supplied to Georgia during the Revolutionary War, applicable in state courts, did not extend to a suit brought in federal court. The case created such an uproar that the adoption of the Eleventh Amendment in 1798 basically reversed the outcome. The sovereign-immunity defense was so daunting that in 1887 the Tucker Act waived the sovereign-immunity defense, not for all claims, but for typical takings claims, which meant that no court had to decide whether federal takings claims could arise directly from the Constitution.
The Tucker Act does not apply, however, to claims that are originally brought against state governments in state courts, which have enacted statutes to mimic the Tucker Act for claims brought in state court. The issue of sovereign immunity thus arises in its pristine form because of a gap in the system that occurs when claims brought against states are removed by the state to federal court, where neither the Tucker Act nor its state equivalents are operative. In Devillier v. Texas, now before the Supreme Court, an ambitious Texas construction project resulting in extensive flooding was subject to an inverse condemnation claim—i.e., one where the taking took place prior to any state authorization thereof—for compensation. The Fifth Circuit, in an unsigned per curiam opinion, dispatched the case in a single sentence: “the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state.” An elaborate petition for certiorari filed by the Institute for Justice noted that the issue was ripe for Supreme Court review because the Fifth Circuit decision was in tension with both prior Supreme Court authority and other decisions in the lower courts. The logic behind this claim is simple enough. The takings clause runs a large hole through the defense of sovereign immunity, which can be sealed shut in this narrow set of cases if Texas—which brought this case into federal court since the sovereign-immunity defense would fail within the state—circumvents its constitutional duty. Dodges of that sort are unwelcome everywhere else under the Constitution, so why allow them here?
The jumbled pattern of the case law explains why Section 3 the Fourteenth Amendment cannot be regarded as self-executing. The basic logic here is that the notion of an insurrection was sufficiently self-explanatory in the aftermath of the Civil War that no such determination was necessary, so that the role of Congress was solely to decide whether to waive that disability by a set of procedures that each House of Congress was free to fashion for itself. The entire matter therefore was not, on this view, subject to any litigation at all, so that there was no need to address the self-enforcing nature of the issue. Indeed, if the Fifth Amendment is regarded as self-executing, it only allows a single private party to bring suit, where all the subsequent proceedings are governed by standard procedures and substantive rules. There is thus no need whatsoever to fashion special rules of any sort to deal with these occasions, which is one reason why the case for self-enforcement looks so strong even in the teeth of the sovereign-immunity defense.
In the context of Section 3, it is impossible to fold this “self-executing” provision into this comfortable mode. No longer can Congress take the lead in reviewing a case; yet the amendment, which makes no mention of any other enforcement mechanism, has to gin one up on the fly. But it may do so only for the president and vice president, whose selection is already subject to extensive political checks, given that the electors for both officials may be subject to exclusion. Surely, it cannot be a simple oversight to omit the president and vice president from this list and lump them in a nondescript class with the full set of officers who under the appointments clause of the federal Constitution are all appointed (with or without Senate confirmation) by the president himself: “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” The president who appoints all officers cannot for these purposes be an officer himself.
But even if the term “officer” is wrenched out of context, there is nothing self-executing about letting a ragtag army of state judges and other public officials rule on whether, on the strength of all facts and circumstances, this former president engaged in an “insurrection” under a definition that does not include the slightest element of organized armed resistance. To encompass “a concerted and public use of force or the threat of force by a group of people to hinder or prevent the US government from taking the actions necessary to accomplish the peaceful transfer of power in this country”—the definition the Colorado Supreme Court used—includes every obstruction of justice in election cases, including countless instance in the Jim Crow South. Far too broad.
The political question doctrine, as articulated by Justice William Brennan in Baker v. Carr (1962), removes certain questions from judicial review. That doctrine is designed in order to remove the courts from the standardless inquiry of fashioning a new body of substantive and procedural law to deal with an issue that no court, the Supreme Court included, should decide at all. The Supreme Court, when it takes up this case, should not decide it on the merits, for the entire controversy should not be decided by any court at all.
