No. 23-719
`
`In the
`Supreme Court of the United States
`
`DONALD J. TRUMP,
`
`v.
`
`NORMA ANDERSON, et al.,
`
`Petitioner,
`
`Respondents.
`
`On Writ Of CertiOrari tO the
`Supreme COurt Of COlOradO
`
`BRIEF OF AMICI CURIAE J. MICHAEL LUTTIG,
`PETER KEISLER, LARRY THOMPSON, STUART
`GERSON, DONALD AYER, ET AL., IN SUPPORT
`OF THE ANDERSON RESPONDENTS
`
`Matthew w. edwaRds
`1300 19th Street NW,
`Suite 300
`Washington, DC 20036
`
`nancy a. teMple
`Katten & Temple, LLP
`209 S. LaSalle Street,
`Suite 950
`Chicago, IL 60604
`
`RIchaRd d. BeRnsteIn
`Counsel of Record
`1875 K Street NW,
`Suite 100
`Washington, DC 20006
`(301) 775-2064
`rbernsteinlaw@gmail.com
`
`Counsel for Amici Curiae
`
`January 29, 2024
`
`327118
`
`
`
`In the
`Supreme Court of the United States
`
`DONALD J. TRUMP,
`
`v.
`
`NORMA ANDERSON, et al.,
`
`Petitioner,
`
`Respondents.
`
`On Writ Of CertiOrari tO the
`Supreme COurt Of COlOradO
`
`BRIEF OF AMICI CURIAE J. MICHAEL LUTTIG,
`PETER KEISLER, LARRY THOMPSON, STUART
`GERSON, DONALD AYER, ET AL., IN SUPPORT
`OF THE ANDERSON RESPONDENTS
`
`Matthew w. edwaRds
`1300 19th Street NW,
`Suite 300
`Washington, DC 20036
`
`nancy a. teMple
`Katten & Temple, LLP
`209 S. LaSalle Street,
`Suite 950
`Chicago, IL 60604
`
`RIchaRd d. BeRnsteIn
`Counsel of Record
`1875 K Street NW,
`Suite 100
`Washington, DC 20006
`(301) 775-2064
`rbernsteinlaw@gmail.com
`
`Counsel for Amici Curiae
`
`January 29, 2024
`
`327118
`
`
`
`i
`
`TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i
`
`TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . iii
`
`TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iv
`
`INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . .1
`
`IN TRODUCTION A ND SU M M A RY OF
` ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
`
`I. STATE COURTS AND THIS COURT
`H AV E T H E J U DICI A L P OW ER
`T O DECI DE A PR E SI DEN T I A L
`DISQUALIFICATION DISPUTE. . . . . . . . . . . .3
`
`
`
`A. The Electors Clause Allocates This Power
`To The States, Subject To This Court’s
`Article III Judicial Review. . . . . . . . . . . . . . .3
`
`
`
`B. No Amendment Repeals This Allocation
`
`Of Judicial Power. . . . . . . . . . . . . . . . . . . . . . .8
`
`1. Section 5 of the Fourteenth
`
`Amendment. . . . . . . . . . . . . . . . . . . . . . . .8
`
`2. Section 3 of the Fourteenth
`
`Amendment. . . . . . . . . . . . . . . . . . . . . . .10
`
`TABLE OF CONTENTS
`
`Page
`
`
`
`ii
`
`3. The Twelfth Amendment . . . . . . . . . . .13
`
`4. The Twentieth Amendment . . . . . . . . .15
`
`C. The Political Question Doctrine Does
`
`Not Apply.. . . . . . . . . . . . . . . . . . . . . . . . . . . .16
`
`D. Federalism And Separation Of Powers
`Support Traditional Court Adjudication
`Rather Than Sole, Unreviewable
`Congressional Power. . . . . . . . . . . . . . . . . . .16
`
`
`
`II. THE FAIR MEANING OF SECTION 3
`DISQUALIFIES FORMER PRESIDENT
`TRUMP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
`
`
`
` Section 3 Must Be Accorded Its Fair
`A.
` Meaning, Not A Narrow Construction . . . .19
`
`B. The “President Of The United States”
`
`Is An “[O]fficer of the United States”. . . . .21
`
`C. T h e Ja n u a r y 6 , 2 0 2 1 A r m e d
`Attempt To Prevent The Peaceful
`Transfer Of Executive Power Was
`An “Insurrection . . . Against The”
`Constitution . . . . . . . . . . . . . . . . . . . . . . . . . .24
`
`
`
`D. M r. T r u mp “ Engaged In” T he
`
`Insurrection . . . . . . . . . . . . . . . . . . . . . . . . . .28
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
`
`Table of Contents
`
`Page
`
`
`
`iii
`
`APPENDIX A — LIST OF AMICI CURIAE . . . . . . .1a
`
`TABLE OF APPENDICES
`
`Page
`
`
`
`iv
`
`Amy Warwick (The Prize Cases),
`
`67 U.S. 635 (1862). . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
`
`ASARCO Inc. v. Kadish,
`
`490 U.S. 605 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
`
`Barry v. United States ex rel. Cunningham,
`
`279 U.S. 597 (1929) . . . . . . . . . . . . . . . . . . . . . . . .5, 6, 15
`
`Brandbenburg v. Ohio,
`
`395 U.S. 444 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . .32
`
`Bush v. Gore,
`
`531 U.S. 98 (2000). . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 16
`
`Chiafalo v. Washington,
`
`140 S. Ct. 2316 (2020). . . . . . . . . . . . . . . . . .6, 11, 13, 26
`
`Cooper v. Aaron,
`
`358 U.S. 1 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`District of Columbia v. Heller,
`
`554 U.S. 570 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . .20
`
`Dobbs v. Jackson Women’s Health Organization,
`
`597 U.S. 215 (2022). . . . . . . . . . . . . . . . . . . . . . . . . . . .17
`
`Hassan v. Colorado,
`
`495 F. App’x 947 (10th Cir. 2012) . . . . . . . . . . . . . . . . .6
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`
`
`v
`
`In re Canvass of Absentee and Mail-In Ballots of
`Nov. 3, 2020 Gen. Election,
` No. 31 EAP 2020, 241 A.3d 1058 (Pa. Nov. 23,
`
`2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
`
`In re Canvassing Observation,
`
`241 A.3d 339 (Pa. Nov. 17, 2020). . . . . . . . . . . . . . . . .30
`
`In re Charge to Grand-Jury Treason,
`
`30 F. Cas. 1047 (C.C.E.D. Pa. 1851) . . . . . . . . . . . . . .29
`
`In re Griffin,
`
`11 F. Cas. 7 (Cir. Ct. D. Va. 1869) . . . . . . . . . . . . . . . . .9
`
`Johnson v. Sec’y of State,
`
`951 N.W.2d 310 (Mich. Dec. 9, 2020) . . . . . . . . . . . . .29
`
`Law v. Whitmer,
` No. 82178, 477 P.3d 1124 (Nev. Dec. 8, 2020) . . . . . .30
`
`McPherson v. Blacker,
`
`146 U.S. 1 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
`
`N.Y. State Rifle & Pistol Ass’n v. Bruen,
`
`597 U.S. 1 (2022). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
`
`New York v. United States,
`
`505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
`
`Cited Authorities
`
`Page
`
`
`
`vi
`
`Northern Sec. Corp v. United States,
`
`193 U.S. 197 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
`
`Seila Law LLC v. Consumer Fin. Prot. Bureau,
`
`140 S. Ct. 2183 (2020). . . . . . . . . . . . . . . . . . . . . . . . . .26
`
`Shelby County v. Holder,
`
`570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
`
`Texas v. Pennsylvania,
`
`141 S. Ct. 1230 (Dec. 11, 2020) . . . . . . . . . . . . . . . . . .29
`
`Thomas v. Loney,
`
`134 U.S. 372 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
`
`Trump v. Biden,
`
`951 N.W.2d 568 (Wis. Dec. 14, 2020) . . . . . . . . . . . . .29
`
`United States v. Burr,
`
`25 F. Cas. 30 (C.C.D. Va. 1807) . . . . . . . . . . . . . . . . . .25
`
`Ward v. Jackson,
` No. CV-20-0343, 2020 WL 8617817 (Ariz.
` Dec. 8, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
`
`Statutes
`
`3 U.S.C. § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
`
`18 U.S.C. § 2383. . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 16
`
`Cited Authorities
`
`Page
`
`
`
`vii
`
`28 U.S.C. § 453. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
`
`28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 8
`
`U.S. const. amend. XII . . . . . . . . . . . . . . . . . . . . . . . .1, 13
`
`U.S. const. amend XIV, § 3 . . . . . . . . . . . 2, 6, 7, 10, 11, 19
`
`U.S. const. amend. XX. . . . . . . . . . . . . . . . . . . . . . . . .1, 15
`
`U.S. const. amend. XX, § 3 . . . . . . . . . . . . . . . . . . . . . . .15
`
`U.S. const. art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 3
`
`U.S. const. art. I § 2, cl. 5 . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`U.S. const. art. I § 3, cl. 6 . . . . . . . . . . . . . . . . . . . . . . .4, 9
`
`U.S. const. art I, § 4 cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . .10
`
`U.S. const. art I, § 5 . . . . . . . . . . . . . . . . .4, 5, 6, 10, 14, 15
`
`U.S. const. art I, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
`
`U.S. const. art I, § 8 cl. 17 . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`U.S. const. art I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`U.S. const. art. II, § 1, cl. 1 . . . . . . . . . . . . . . . .2, 6, 21, 24
`
`Cited Authorities
`
`Page
`
`
`
`viii
`
`U.S. const. art. II, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . .14, 18
`
`U.S. const. art. II, § 1, cl. 3 . . . . . . . . . . . . . . . . . . . .14, 25
`
`U.S. const. art. III, § 1. . . . . . . . . . . . . . . . . . . . . . . . . . .11
`
`U.S. const. art. III, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . . . . .7
`
`U.S. const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . .19
`
`Other Sources
`
`R. Bernstein, “Lots of People Are Disqualified
`from Becoming President,” Atlantic (Feb.
`4, 2021) https://www.theatlantic.com/ideas/
`archive/2021/02/trump-disqualification-
`president/617908/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
`
`
`
`Samuel Bray, “Officer of the United States”
`in Context, Reason (Jan. 22, 2024) https://
`reason.com/volokh/2024/01/22/officer-of-the-
` united-states-in-context/. . . . . . . . . . . . . . . . . . . . . . .23
`
`Chronology of Events Leading to Secession Crisis,
`aMeRIcan hIstoRIcal assocIatIon https://www.
`historians.org/teaching-and-learning/teaching-
`resources-for-historians/sixteen-months-
`to-sumter/chronology. . . . . . . . . . . . . . . . . . . . . . . . . .27
`
`
`
`Cong. Globe, 39th Cong., 1st Sess. 2918
`
`(May 31, 1866). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
`
`Cited Authorities
`
`Page
`
`
`
`ix
`
`John Eastman’s Second Memo on “January 6
`Scenario,” Wash. Post (Oct. 29, 2021), https://www.
`washingtonpost.com/context/john-eastman-s-
`second-memo-on-january-6-scenario/b3fd2b0a-
`f931-4e0c-8bac-c82f13c2dd6f/ . . . . . . . . . . . . . . . . . .15
`
`
`
`J. Elliot, The Debates in the Several State
` Conventions (J. Elliot ed., 2d ed. 1836) . . . . . . . . . . .25
`
`J. Heilpern & M. Worley, Evidence that the President
`Is an “Officer of the United States” for Purposes
`of Section 3 of the Fourteenth Amendment
`(Jan. 1, 2024) https://papers.ssrn.com/sol3/
`Delivery.cfm/SSRN_ID4681108_code2677999.
`pdf?abstractid=4681108&mirid=1 . . . . . . . . . . . . . .22
`
`
`
`S. Johnson, A Dictionary of the English
` Language (4th ed. 1773) . . . . . . . . . . . . . . . . . . . . . . .13
`
`P. Keisler & R. Bernstein, Freedom of Speech Doesn’t
`Mean What Trump’s Lawyers Want It to Mean,
`Atlantic (Feb. 8, 2021) https://www.theatlantic.
`com/ideas/archive/2021/02/first-amendment-
` no-defense-against-impeachment/617962/ . . . . . . . .32
`
`J. Kent, Commentaries on American Law
`
`(11th ed. 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
`
`James Madison, Federalist No. 48 . . . . . . . . . . . . . . . . .17
`
`James Madison, Federalist No. 78 . . . . . . . . . . . . . . . . .17
`
`Cited Authorities
`
`Page
`
`
`
`x
`
`J. McPherson, Battle Cry of Freedom (1988) . .20, 27, 28
`
`M ichael Pence, Vice P resident ’s Lett er
`to Congress (January 6, 2021), https://int.
`nyt.com/data/documenttools/pence-letter-
`o n - v p - a n d - c o u n t i n g - e l e c t o r a l - vo t e s /
`9d6f117b6b98d66f/full.pdf. . . . . . . . . . . . . . . . . . . . . .23
`
`
`
`R. Parloff, What Scalia Thought About Whether
`Presidents Are “Officers of the United
`States,” lawfa Re (Ja n. 24, 2024) https://
`www.lawfaremedia.org/article/what-justice-
`scalia-thought-about-whether-presidents-
`are-officers-of-the-united-states . . . . . . . . . . . . . . . .22
`
`
`
`A. Scalia & B. Garner, Reading Law (2012). . . . . . .19, 23
`
`Ilya Somin, Insurrection, Rebellion, and
`January 6: Rejoinder to Steve Calabresi,
`Reason (Jan. 6, 2024) https://reason.com/
`volokh/2024/01/06/insurrection-rebellion-
`and-january-6-rejoinder-to-steve-calabresi/
`?itm_source=parsely-api. . . . . . . . . . . . . . . . . . . . . . .25
`
`
`
`South Carolina convention, Declaration of the
`Immediate Causes Which Induce and Justify
`the Secession of South Carolina from the
`Federal Union https://www.learningforjustice.
`org/classroom-resources/texts/hard-history/
`declaration-of-the-immediate-causes-which-
`induce-and-justify-secession. . . . . . . . . . . . . . . . . . . .27
`
`
`
`Cited Authorities
`
`Page
`
`
`
`xi
`
`2 J. Story, Commentaries on the Constitution
`
`§ 831 (1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
`
`J. Story, Commentaries on the Constitution of
`
`the United States § 423 at 300 (2d ed. 1858). . . . . . .19
`
`St. George Tucker, Blackstone’s Commentaries:
`With Notes of Reference to the Constitution and
`Laws of the Federal Government of the United
`States and of the Commonwealth of Virginia,
` App. 200-205 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`The Reconstruction Acts,
`
`12 Op. Att’y Gen. 141 (1867) . . . . . . . . . . . . . . . . . . . .29
`
`The Reconstruction Acts,
`
`12 Op. Att’y Gen. 182 (1867) . . . . . . . . . . . . . . . . . . . .29
`
`Washington’s Farewell Address (1796) https://
`www.govinfo.gov/content/pkg/GPO-CDOC-
`106sdoc21/pdf/GPO-CDOC-106sdoc21.pdf . . . . . . . .26
`
`
`
`Cited Authorities
`
`Page
`
`
`
`1
`
`INTEREST OF AMICI CURIAE
`
`The amici listed in Appendix A submit this brief.
`Amici include former officials who worked in the last six
`Republican administrations, senior officials in the White
`House and Department of Justice, and others who support
`a strong, elected Presidency.1 Reflecting their experience,
`amici have an interest in defending the peaceful transfer
`of power to a newly-elected President that is required by
`Article II and the Twelfth and Twentieth Amendments
`and is protected against insurrection by Section 3 of the
`Fourteenth Amendment. Amici speak only for themselves
`personally and not for any entity or other person.
`
`INTRODUCTION AND SUMMARY OF
`ARGUMENT
`
`This brief focuses on two textualist points. First, it
`would violate the rule of law and textualism for this Court
`to create an off-ramp to avoid adjudicating whether Mr.
`Trump is disqualified. The power to decide a dispute about
`a presidential candidate’s constitutional qualifications
`is a judicial power that has been vested by the Electors
`Clause initially in the States, and by Article III’s grant
`of appellate jurisdiction ultimately in this Court. Section
`5 of the Fourteenth Amendment merely gives Congress
`power to legislate a judicial enforcement mechanism in
`addition to this pre-existing judicial power of the States
`and this Court.
`
`1. Amici state that no counsel for any party authored this brief
`in whole or in part, and that no entity, other than amici and their
`counsel, made any monetary contribution toward the preparation
`or submission of this brief.
`
`
`
`2
`
`Mr. Trump does not argue that the Constitution gives
`Congress judicial power over a presidential qualifications
`dispute. Section 5 of Article I gives Congress the power
`only to “be the Judge of the . . . Qualifications of its own
`Members.” In contrast, Section 3 of the Fourteenth
`Amendment merely checks the judicial power of the
`courts by giving Congress the power by two-thirds vote
`to remove, for any reason, disqualification under Section
`3, even after it has been judicially adjudicated.
`
`Second, the terms of Section 3 of the Fourteenth
`Amendment disqualify Mr. Trump. The Court should heed
`the warning of Justice Holmes that cases of “immediate
`overwhelming interest” often “make bad law.” Northern
`Sec. Corp. v. United States, 193 U.S. 197, 400-01 (1904)
`(Holmes, J., dissenting). Particularly because Section
`3 emerged from the hallowed ground of the Civil War,
`this Court must accord Section 3 its fair meaning, not a
`narrow construction. Mr. Trump was “President of the
`United States.” U.s. const. art. II, § 1, cl. 1. He never
`disputes that the President is an “officer.” It follows, as
`the Fourteenth Amendment generation understood, that
`the “President of the United States” is an “officer of the
`United States.” Mr. Trump incited, and therefore engaged
`in, an armed insurrection against the Constitution’s
`express and foundational mandates that require the
`peaceful transfer of executive power to a newly-elected
`President. In doing so, Mr. Trump disqualified himself
`under Section 3.
`
`
`
`3
`
`ARGUMENT
`
`I. STATE COURTS AND THIS COURT HAVE
`T H E J U DICI A L POW ER T O DECI DE A
`PRESIDENTIAL DISQUALIFICATION DISPUTE.
`
`Resolving individual disputes of a presidential
`candidate’s qualifications is an exercise of judicial power.
`Under federalism and separation of powers, state and
`federal courts exercise judicial power, except for Article
`I’s two grants of enumerated judicial powers to Congress.
`Neither of those grants even arguably applies here. And
`no constitutional amendment changes the allocation of
`judicial power here.
`
`A. The Electors Clause Allocates This Power To
`The States, Subject To This Court’s Article III
`Judicial Review.
`
`The Constitution limits Congress to the two judicial
`powers enumerated in Article I. The founding generation
`understood this. The oft-cited treatise of St. George
`Tucker explained that the Constitution vested
`
`[t]he judicial powers (except in the cases
`particularly enumerated in the first article) in
`the courts; the word the, used in defining the
`powers of the executive, and of the judiciary,
`is, with these exceptions, co-extensive in its
`signification with the word all: . . . .
`
`[Congress] is neither established as [a judicial
`court] by the constitution (except in respect to
`its own members,) nor has it been, nor can it be
`
`
`
`4
`
`established by authority of congress; for all the
`courts of the United States must be composed
`of judges commissioned by the president of the
`United States, and holding their offices during
`good behaviour, and not by the unstable tenure
`of biennial elections.
`
`St. George Tucker, Blackstone’s Commentaries: With
`Notes of Reference to the Constitution and Laws of the
`Federal Government of the United States and of the
`Commonwealth of Virginia, App. 200-205 (1803) (first
`and last emphasis added).
`
`The constitutional provisions on impeachment provide
`one of only two “particularly enumerated” grants of
`judicial power to Congress. Article I, section 3, clause 6
`states: “The Senate shall have the sole Power to try all
`Impeachments.” (Emphasis added). Clause 6 also refers to
`the person subject to impeachment being “convicted” by
`“the Concurrence of two thirds of the Members present.”
`And the next clause refers to “Judgment in Cases of
`Impeachment.” Article II, Section 4, in turn subjects to
`Impeachment “[t]he President, the Vice President, and
`all civil Officers of the United States.”
`
`In contrast, in the second grant of an enumerated
`judicial power to Congress, the Constitution gives
`Congress no judicial power concerning the President, the
`Vice President, and all civil officers. This second grant is
`in Section 5 of Article I: “Each House shall be the Judge
`of the Elections, Returns and Qualifications of its own
`Members[.]” (Emphasis added). Justice Story explained
`the reason that this judicial power concerning “Members”
`was given to Congress: “If lodged in any other, than the
`
`
`
`5
`
`legislative body itself, its independence, its purity, and
`even its existence and action may be destroyed, or put
`into imminent danger.” 2 J. stoRy, coMMentaRIes on the
`constItUtIon § 831 (1833).
`
`As the text of Article I, Section 5 confirms, this
`rationale does not support any power of Congress to “be
`the Judge of the . . . Qualifications of” the President or
`any officer of the United States. The founding generation
`would have considered it unthinkable to give Congress
`an unreviewable power, by a bare majority, to disqualify
`a President or a cabinet member when the facts or legal
`principles are in dispute. As James Madison explained
`in Federalist No. 48: “The legislative department is
`everywhere extending the sphere of its activity, and
`drawing all power into its impetuous vortex.” Madison
`warned against “legislative usurpations, which, by
`assembling all power in the same hands, must lead to the
`same tyranny as is threatened by executive usurpations.”
`He thus stated that the Constitution did not make
`“[t]he judiciary and executive members . . . dependent
`on the legislative . . . for their continuance in” office. Id.
`(emphasis added). “An ELECTIVE DESPOTISM was not
`the government we fought for;” but rather the founding
`generation fought for a government with the “effectual[]
`check[s] and restraint[s]” of separation of powers. Id.
`
`In Section 5 of Article I, however, the word “Judge”
`does reflect the founding generation’s understanding
`that it is an exercise of judicial power to decide disputed
`factual and legal questions about whether a particular
`person is qualified to hold office. Accordingly, Barry v.
`United States ex rel. Cunningham, 279 U.S. 597 (1929),
`holds that when a house of Congress exercises power over
`
`
`
`6
`
`a dispute about “elections, returns, and qualifications”
`of that house’s members, that house “acts as a judicial
`tribunal.” Id. at 616. The power to decide such a dispute
`is “judicial in character,” and its exercise “necessarily
`involves the ascertainment of facts . . . to determine the
`facts and to apply the appropriate rules of law, and, finally,
`to render a judgment . . . .” Id. at 613. Before Barry,
`Thomas v. Loney, 134 U.S. 372 (1890), also had held that
`Section 5 of Article 1 gives each House “judicial power”
`and each House acts as a “judicial tribunal.” Id. at 374-
`75. Although Barry and Loney involved elections, their
`rationale expressly applied to qualifications as well. As it
`must, because “Judge” in Article I, Section 5 applies to
`“Elections, Returns and Qualifications.”
`
`In stark contrast to congressional qualifications,
`the Constitution confers the judicial power to adjudicate
`presidential qualifications first on the state officials and
`courts designated by state law, and ultimately on the
`Supreme Court. To start, the Electors Clause in Article
`II, Section 1 confers power on each State to “direct”
`the “Manner” of “appoint[ing]” presidential electors.
`Each state’s “far-reaching authority over presidential
`electors,” Chiafalo v. Washington, 140 S. Ct. 2316, 2324
`(2020), includes the “power to impose conditions on
`the appointment of electors,” id. at 2324 n.6. Thus, “a
`state’s legitimate interest in protecting the integrity and
`practical functioning of the political process permits it to
`exclude from the ballot candidates who are constitutionally
`prohibited from assuming office.” Hassan v. Colorado, 495
`F. App’x 947, 948 (10th Cir. 2012) (Gorsuch, J.) (emphasis
`added). The Electors Clause also gives each state the
`power to authorize state officials and state courts “to
`oversee election disputes,” Bush v. Gore, 531 U.S. 98,
`
`
`
`7
`
`113-14 (2000) (Rehnquist, C.J., concurring). A dispute
`over a presidential candidate’s qualifications under federal
`law is certainly one very important kind of presidential
`election dispute.
`
`Even without the Electors Clause, as a matter of
`federalism, generally state law may authorize state courts
`to interpret and apply “federal law,” even when Congress
`has not created a justiciable cause of action. ASARCO Inc.
`v. Kadish, 490 U.S. 605, 617 (1989). The only exception is
`when the Constitution or a valid federal statute contains
`“a provision for exclusive federal jurisdiction.” Id.
`
`Section 2 of Article III of the Constitution directly
`gives the Supreme Court appellate jurisdiction, “both as
`to law and fact,” of “all cases, in law and equity, arising
`under this Constitution, [and] the laws of the United
`States,” except in cases where this Court has original
`jurisdiction. The ubiquitous “all cases” include disputes
`in state court raising federal issues about a presidential
`candidate’s qualifications under the Constitution.2 As Bush
`v. Gore held, when disputes arise relating to a presidential
`election, after initial resolution by the state officials or
`state courts designated by state law, it is “our unsought
`responsibility to resolve the federal and constitutional
`issues the judicial system has been forced to confront.”
`531 U.S. at 111 (per curiam) (emphasis added). After that
`resolution, the Constitution’s Supremacy Clause mandates
`that all state legislatures, officials, and courts abide by
`
`2. Congress has the power to make “Exceptions” and
`“Regulations” to this Court’s appellate jurisdiction. U.s. const. art.
`III, § 2, cl. 2. Congress has not done either concerning presidential
`disqualifications. See 28 U.S.C. § 1257.
`
`
`
`8
`
`final Supreme Court rulings on issues of federal law.
`Cooper v. Aaron, 358 U.S. 1, 4, 18-20 (1958).
`
`To summarize, under the Electors Clause and
`federalism, state courts and election officials initially have
`authority to adjudicate whether a candidate for President
`is disqualified by the Constitution. Next, under Article
`III’s authorization of appellate jurisdiction and 28 U.S.C.
`§ 1257, this Court reviews such a ruling and makes the
`final judicial decision whether a presidential candidate is
`disqualified. Finally, under the Supremacy Clause, the
`Supreme Court’s ruling is binding in all 50 States. That
`refutes any suggestion that only Congress can prevent
`inconsistent rulings between courts in different states on
`whether a presidential candidate is disqualified.
`
`B. No Amendment Repeals This Allocation Of
`Judicial Power.
`
`Nothing in any constitutional amendment limits the
`pre-existing power of state courts and ultimately the
`Supreme Court to adjudicate a presidential qualifications
`dispute before the election. And Mr. Trump does not argue
`that any constitutional amendment confers a power on
`Congress to adjudicate this case of disputed presidential
`qualifications.
`
`1. Section 5 of the Fourteenth Amendment: Section
`5 states: “The Congress shall have power to enforce, by
`appropriate legislation, the provisions of this article.”
`(Emphasis added). Nothing in these fifteen words deprives
`the states of their pre-existing power, subject to this
`Court’s review, to adjudicate a presidential candidate’s
`constitutional qualifications. See Part I.A., supra. Section
`
`
`
`9
`
`5 says “power,” not “the power”—much less “exclusive” or
`“sole power.” Compare Art. I, § 2, cl. 5, and § 3, cl. 6. (“the
`sole Power”); Art. I, § 8, cl. 17 (“exclusive Legislation”).
`Nor does Section 5 state “No State shall” as Section 1 does.
`See also Art. I, § 10 (“No State shall” used for more than
`15 prohibitions). Nor does one word in Section 5 permit any
`distinction between Congress’s power to enforce Section
`3 versus Section 1. Rather, as to Section 3 and Section 1,
`Section 5 gives Congress “power” to legislate an additional
`enforcement mechanism, and does not negate the pre-
`existing adjudicatory power of state courts, subject to
`Supreme Court review, to enforce the Constitution.
`
`For similar reasons, Mr. Trump misplaces reliance on
`In re Griffin, 11 F. Cas. 7 (Cir. Ct. D. Va. 1869). Nothing
`in Griffin involved, addressed, or limited either a state
`court’s pre-existing power under the Electors Clause to
`decide a presidential qualifications dispute or this Court’s
`Article III appellate jurisdiction over such a state court
`decision.
`
`Mr. Trump is also wrong that 18 U.S.C. § 2383 “is
`the exclusive means of enforcing section 3.” Pet’r’s Br. at
`40. Like most criminal statutes, Section 2383 contains
`nothing like an exclusive jurisdiction provision. And it
`was originally adopted in the Second Confiscation Act
`of 1862, 12 Stat. 589, before the Fourteenth Amendment
`was enacted.
`
`Moreover, exclusive federal court jurisdiction
`concerning who is eligible to be elected President would
`be in tension with the powers that the Electors Clause
`confers on States, but not Congress. The Electors Clause
`contrasts with the Elections Clause in Article I, Section 4,
`
`
`
`10
`
`Clause 1. The Elections Clause gives Congress power to
`“make or alter . . . regulations” on the “Manner” of holding
`congressional elections, but the Electors Clause gives
`Congress no such power concerning presidential elections.
`Shelby County v. Holder, 570 U.S. 529 (2013), held that
`Congress’s power under Section 2 of the Fifteenth
`Amendment to enact “appropriate legislation” does not
`authorize legislation that violates federalism. Id. at 538,
`543. For similar reasons, it would not be “appropriate
`legislation” under Section 5 of the Fourteenth Amendment
`for a statute to nullify a state court’s traditional power
`to decide a presidential qualification dispute, subject to
`Supreme Court review.
`
`Finally, Mr. Trump does not argue that Section 5
`confers any judicial power on Congress. “[L]egislation”
`is a product of legislative power, not judicial power.
`And, unlike an adjudication, the Constitution, in Article
`1, Section 7, Clause 2, requires that all legislation be
`presented to the President for signature or veto.
`
`2. Section 3 of the Fourteenth Amendment: The last
`sentence of Section 3 reads: “But Congress may by a vote
`of two-thirds of each House, remove such disability.” The
`words “[b]ut” and “remove” connote that the disability
`existed before Congress votes.
`
`Mr. Trump does not argue that the last sentence
`of Section 3 confers a power on Congress to adjudicate
`whether there was a disability before its removal. See
`Pet’r’s Br. at 41-42. Indeed, “vote” to “remove such
`disability” in Section 3 stands in stark contrast to
`“Judge” in Article I, Section 5 and “try,” “convicted,”
`and “Judgment” in Article I, Section 3, clauses 6 and
`
`
`
`11
`
`7. See supra, at pp. 4-6. Two-thirds of Congress may
`“vote” to remove a pre-existing disability for any reason,
`including that the disqualified person has reformed or
`for pure politics. And Congress need not hear evidence
`or otherwise satisfy procedural due process.
`
`Mr. Trump instead argues that the combination in
`Section 3 of the phrase “hold any office” and Congress’s
`power by two-thirds “vote” to “remove such disability”
`nullifies a state court’s power to adjudicate (subject to
`this Court’s review) a Section 3 presidential qualification
`dispute before election day. Pet’r’s Br. at 41-46. This is
`wrong. To start, courts may adjudicate before election day
`three other presidential disqualifications that use “hold”
`or similar words. First, a criminal conviction under 18
`U.S.C. § 2383 for insurrection renders a person “incapable
`of holding any office under the United States.” Neither
`Mr. Trump nor anyone else suggests that such a federal
`criminal case cannot be adjudicated before election day.
`
`Second, the Twenty-Second Amendment states, “[n]o
`person shall be elected to the office of the President more
`than twice.” A President is “elected” under Article III,
`Section 1 and the Twelfth Amendment no earlier than
`when “[t]he Electors . . . vote by ballot for President” in
`mid-December. See Chiafalo, 140 S. Ct. at 2321, 2325 (the
`electors “do indeed elect a President”). Obviously, the
`Twenty-Second Amendment does not render a state court
`powerless before election day to prevent Barack Obama
`and George W. Bush from running on that state’s ballot
`for a third term.
`
`Third, Article I, Section 3, Clause 7 gives the Senate
`power, after impeachment and conviction, to enter a
`
`
`
`12
`
`judgment of “disqualification to hold and enjoy any
`Office of honor, Trust or Profit under the United States.”
`(Emphasis added.) Of course, a state may give its courts
`power to enforce this “disqualification to hold” by barring
`a disqualified person from running.
`
`Equally unavailing is Mr. Trump’s reliance on the
`fanciful possibility that Congress by two-thirds vote might
`remove his disability. This does not deprive the courts of
`their traditional ability to adjudicate a disqualification
`before election day. In the other instances discussed
`above—the bars of 18 U.S.C. § 2383, the Twenty-Second
`Amendment, and disqualification by the Senate—the
`candidate could assert an equally unlikely fantasy that
`two-thirds of Congress might propose and the States
`might ratify a constitutional amendment that removes
`the disability.
`
`Rather, the words “remove such disability” in the
`Fourteenth Amendment confirm that the candidate is
`currently disqualified and will remain disqualified, unless
`and until there is an affirmative vote by two-thirds of
`Congress to “remove” that disqualification. It makes no
`sense to put off the judicial determination of whether
`someone is qualified, and the potential subsequent removal
`of the disability by Congress, until after the election has
`been run. That would deprive voters of the ability to
`make a truly informed decision, because they could not
`know if they were voting for someone who cannot serve.
`And it would risk chaos as courts litigate whether a
`newly-inaugurated President is disqualified at the same
`time the country needs a President to be indisputably
`occupying the office and making enormously consequential
`decisions—including as commander-in-chief, appointer of
`
`
`
`13
`
`cabinet members, leader of the executive branch, vetoer
`of bills, etc. It is difficult to believe that the framers of
`the Fourteenth Amendment added Section 3 intending
`that the new clause operate in a way that deprives both
`voters of the a
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