In Trump v. Anderson, decided on March 4, 2024, the Court ruled that the “Insurrection Clause” of the 14th Amendment to the United States Constitution[1] can only be enforced via a remedial statute enacted by Congress pursuant to the “Enforcement Clause” of that Amendment.[2] According to the Court, the latter Clause precludes state governments from attempting to enforce the former Clause. Despite the unanimity of the Court on the broader issue of state preclusion in general, only a bare majority of Justices on the Court agreed with this specific ruling regarding the “Enforcement Clause.” Justices Sotomayor, Kagan, and Jackson concurred only in the result of the majority Opinion, while Justice Barrett said that she preferred to limit her rationale for voting to concur in the result to the more generic issue.
COMMENT: Contrary to perceptions already expressed in much of the news media, and perhaps shared by Justices Sotomayor, Kagan, and Jackson, the 5-4 majority Opinion of the Court necessarily follows and applies both the letter and the spirit of the 14th Amendment when read as a whole, as it should be. Contrary to the celebrations over the Court’s decision heard from former President Trump’s political supporters, the Court’s ruling, as expressed by the majority of the Justices, does not relieve Mr. Trump of the threat of formal disqualification from the office of President. As the majority Opinion itself implies, he can still be prosecuted for violating 18 U.S.C. § 2383, which is arguably a remedial statute against “insurrection” enacted by Congress under the “Enforcement Clause” of the 14th Amendment. That statute explicitly prescribes disqualification from any federal office upon conviction of either of the crimes identified therein.
Dan Rhea
[1] U.S. Const., Amendment XIV, § 3.
[2] U.S. Const., Amendment XIV, § 5.
RECENT RULINGS 