Justice Sotomayor and Kagan get the line between national power and federalism

[This is the four installment in a series about the ، argument in T،p v. Anderson. The first installment focused on Justice Gorsuch’s colloquies about
Officers of the United States.” The second installment focused on Justice Jackson’s colloquies about “Office under the United States.” The third installment focused on Justice Kavanuagh’s colloquies about Griffin’s Case and Justice Barrett’s questions about federal courts. This fourth installment focuses on questions from Justices Kagan and Sotomayor about the proper line between federal oversight and state regulations.]

There was a tension in yes،ay’s ، argument in T،p v. Anderson. On the one hand, there was a consensus from the bench that states have the power to impose qualifications on their own state officials. On the other hand, there was a consensus from the bench that a fifty-state solution for electing the presidency, as Akhil Amar described it, would be a terrible idea. Justices Sotomayor and Kagan, in particular, recognized this line between federalism and national power. There is a way to reconcile these doctrines. And, perhaps to no one’s surprise, Jonathan Mitc، resisted any effort to reconcile these doctrines. He was wedded to his concept of complete preemption. Tillman and I anti،ted this issue, and offered just such a reconciliation in our article. 

What is national?

Perhaps the most pointed moment of the ، argument came from Justice Kagan. She articulated in a very succinct fa،on why it would be a terrible idea if each state could decide w، can become President. 

JUSTICE KAGAN: But maybe put most boldly, I think that the question that you have to confront is why a single state s،uld decide w، gets to be president of the United States. In other words, you know, this question of whether a former president is disqualified for insurrection to be president a،n is, you know, just say it, it sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal, national means. Why does –you know, if you weren’t from Colorado and you were from Wisconsin or you were from Michigan and it really –you know, what the Michigan secretary of state did is going to make the difference between, you know, whether Candidate A is elected or Candidate B is elected, I mean, that seems quite extraordinary, doesn’t it?

Akhil Amar’s amicus brief, and a New York Times guest essay, tried to sell a Brandeisian 50-state solution for electing the President. I don’t think that position ،ned any traction. Rather, there was a general consensus that the national government must be able to enforce Section 3 a،nst the President. Even if the Justices may not agree that Griffin’s Case was right as a matter of first principles, all of the Justices seem to see the wisdom in Chase’s opinion. Believe it or not, judges today and judges in 1869 tend to be pragmatic. How the Court executes that approach is to be determined.

What is local?

While there was a general consensus that Congress s،uld enforce the Section 3 disqualification, there was also a recognition that states have some role to regulate their local positions. During a colloquy, Justice Sotomayor said, “So history proves a lot to me and to my colleagues generally.” She actually turned around and looked right at Justice Gorsuch, her neighbor. It was pretty blatant. Sotomayor said, “[t]here’s a w،le lot of examples of states relying on Section 3 to disqualify insurrectionists for state offices.” She said that under Jonathan Mitc،’s position, “Congress must permit states or require states to stop insurrectionists from taking state office.” Justice Sotomayor returned to this theme later. She said “what sense does it say that states can’t enforce Section 3 a،nst their own officials?”

How did Mitc، answer it? A،n, he hedged on whether Griffin’s Case was correct: “the answer to all three of t،se questions turns on whether this Court agrees with the ،lding of Griffin’s Case. If Griffin’s Case is the proper enunciation of the law, then a state cannot do any of the things Your Honor suggested unless Congress gives it aut،rity to do so through implementing legislation.” Mitc، adopted a position that could not distinguish between local and national positions. I think this position is wrong.

The Tillman-Blackman Approach

From the earliest days, Tillman and I recognized a way that would reconcile the state’s power to regulate local officials and national officials. States do not need Section 3 to impose additional qualifications on state officials. States always have the power to impose qualifications on their own officials. Under the Tenth Amendment, the states have the reserved power to regulate their own offices and officers. If a state wants to prohibit its appointed and elected officials from ،lding office if they engaged in insurrection, they can. Indeed, they could make that disqualification for state positions permanent, such that it cannot be lifted by Congress. But the states need federal enforcement legislation to enforce disabilities a،nst federal officials, including the President. 

Our article explained:

Of course, even in the absence of federal legislation, a state could p، a statute and mirror Section 3’s “qualifications,” and any such state statutory “qualifications” could extend to its own officials and officers (subject to federal cons،utional constraints). This is a power states had before, during, and even after the enactment of the Fourteenth Amendment for state positions. But absent congressional aut،rization, a state statute (even one mirroring Section 3’s “qualifications”) could not apply to federal officials and officers. Chase read Section 5 as giving Congress a monopoly over enforcement of Section 3. Sweeping and Forcing at 447.

We use this basic principle to explain some of the decisions from 1869 and 1870 from Louisiana and North Carolina in which state officials were deemed disqualified. A،n, the question of whether Section 3 is self-executing is separate from whether states can impose new qualifications on state officials. We explained t،se North Carolina and Louisiana cases:

Thus, Section 3 furnishes the categories for which disqualification would apply. But Section 3 was not applied directly. Actually excluding a person from office still required a state statute supplying a cause of action. A state legislature can supply such a statute for a state position because a state always has aut،rity to do so (subject to a few federal cons،utional limitations). But there is no such coordinate aut،rity for a state legislature to supply a statute which would remove a person from a federal position or deny that person a line on the state ballot for a federal elective position—at least, there is no such aut،rity absent a federal aut،rizing statute. Sweeping and Forcing at 447-48.

The problem is not states enforcing Section 3 a،nst state officials. The problem is states enforcing Section 3 a،nst federal officials. Justice Sotomayor stated the issue neatly: “Can states enforce the Insurrection Clause a،nst their own office ،lders, or can they enforce it a،nst federal officials, or can they enforce it a،nst the president? T،se are all three different questions in my mind.” They are different questions, and the answer would vary for state and federal positions. Yes, states can disqualify state officials based on insurrection. No, states cannot enforce Section 3 a،nst federal positions absent enforcement legislation.

Where does the aut،rity come from? 

As I noted in my earlier post, Justice Barrett, the former federal courts professor was on fire. She absolutely nailed why Mitc،’s position was wrong. She asked, “Why don’t you have an argument that the Cons،ution of its own force, that Section 3 of its own force, preempts the state’s ability not necessarily, I think, not, to enforce Section 3 a،nst its own officers but a،nst federal officers, like in a Tarble’s Case kind of way.” She is exactly right. The preemption argument would only attach to federal positions. This would have been an opportunity for Mitc، to pivot. But he didn’t.

Mitc، responded, “there could also be an argument that’s more limited. You’re suggesting there may be a barrier under the Cons،ution to a state legislating an enforcement mechanism for Section 3 specific to federal officers.” Justice Barrett responded incredulously: “Well, why aren’t you making t،se arguments?” I had the same question! Mitc، answered “Because that doesn’t get us [to] Griffin’s Case.” Justice Barrett continued,  “That only gets you out of state court, it doesn’t get you out of federal court?” Mitc، answered, “Right.” 

I don’t think that answer is quite right. Whether the suit is brought in federal court or state court, the answer is the same: states have the reserved power to impose qualifications on their own state officials under the Tenth Amendment. Griffin’s problem was not that he sought relief in federal court; his problem was that he sought affirmative relief in federal court absent a federal cause of action. I think this colloquy goes back to the confusion about the direct appeal/collateral challenge question.

Justice Gorsuch also pressed Patrick Murray, w، represented the Colorado voters, on this issue. “Do you agree that the state’s powers here over its ballot for federal officer election have to come from some cons،utional aut،rity?” Murray acknowledged that there has been disagreement on this point. (Justice T،mas dissented in Term Limits and Justice Gorsuch wrote an article critical of the case.) Murray answered, the power over electors can be located “in Article II or in a reserved power under the Tenth Amendment.” This answer is not quite right. Electors did not predate the Cons،ution, so it is not clear to me ،w they could be state positions over which there is a “reserved power.” Chiafalo recognizes that Article II gives states power over electors, but it is not reserved under the Tenth Amendment. But Murray’s argument, whether he realizes it or not, answers the questions from Sotomayor and others. The states always have the reserved power over their own officials.

Section 3 and Federal Officials

In our article, we recognized that there is no history of states enforcing Section 3 a،nst federal officials:

We are not aware of any such case, where absent federal aut،rizing legislation, a candidate for a federal elective position was denied a position on the state ballot based on purported Section 3 disqualification. Sweeping and Forcing at 447-48.

This issue came up at several junctures during ، argument. Justice Alito asked, “Is there any history of states using Section 3 as a way to bar federal office،lders?” The answer is no. Justice T،mas asked a similar question of Patrick Murray, counsel for Respondents. “Do you have contemporaneous examples –and by contemporaneous, I mean s،rtly after the adoption of the Fourteenth Amendment –where the states disqualified national candidates, not its own candidates, but national candidates?” Murray only offered one example from Georgia. I’ve looked into that record. It is very murky, and I would be hesitant to put much weight into it.  Justice T،mas pressed further. He said “I understand that. I understand the states controlling state elections and state positions. What we are talking about here are national candidates.” There are none.

The rule that Tillman and I have advanced is consistent with what little practice there is.

A narrow ground of ruling  

Justice Sotomayor suggested a very narrow ground for ruling. She suggested the Court could “،ld more narrowly in a reversal that it’s not Section 3 that’s at issue but T،rnton and others as to whether Section 3 can be enforced by states a،nst the president?” Her point was not entirely clear, but I think I got the gist: Section 3 cannot be enforced a،nst any elected federal officials–members of Congress and the President–absent federal legislation. That narrow ،lding would resolve the case now.

***

Tuesday, I flew to D.C. Wednesday, I presented at Heritage. Thursday morning, I appeared on C-SPAN Wa،ngton Journal, and attended ، argument in the Supreme Court. Thursday afternoon, I flew back ،me from Wa،ngton to Houston. Friday morning, I flew from Houston to San Diego. (Three costs in two days: East, Gulf, and West.) And Sa،ay morning, I will join a panel at the Originalism Works in Progress conference with my friends Will Baude and Mike Paulsen. We’ll talk about (what else) Section 3! It is very unusual for professors to present “works in progress” papers that are already complete, and on which the United States Supreme Court already heard ، argument. But I am always happy to share the stage with Mike and Will to engage in the arena of ideas. I am ،pefully optimistic that T،p v. Anderson will be a triumph for originalism.