Category: reason

Prof. Andrew Koppelman (Northwestern) writes at the Chronicle of Higher Education about follow-on developments in a controversy that I blogged about last week (the one that began with an exam question that discussed a racial harassment hypothetical, and contained expurgated slurs). An excerpt, though you should read the whole thing:

[Prof. Kilborn writes:] “On Thursday, January 7, I voluntarily agreed to talk to one of the Black Law Students Association members who had advanced this petition against me. Around hour 1 or 1.5 of a 4-hour Zoom call that I endured from 5:00 pm to 9:00 pm with this young man, he asked me to speculate as to why the dean had not sent me BLSA’s attack letter, and I flippantly responded, ‘I suspect she’s afraid if I saw the horrible things said about me in that letter I would become homicidal.’ Conversation continued without a hitch for 2.5 or 3 more hours, and we concluded amicably with a promise to talk more later.

“He apparently turned around and reported that I was a homicidal threat. Our university’s Behavioral Threat Assessment Team convened, with no evidence of who I am at all, and recommended to my dean that I be placed on administrative leave and barred from campus. […] Having full discretion to implement or reject that recommendation, and knowing me fairly well, having worked with me quite a bit for the past four years, my dean decided that I was, indeed, a homicidal threat.” …

The university cannot possibly suspend and bar from campus everyone who uses the occasional violent figure of speech. Such metaphors are common in casual conversation. In context, no reasonable person could take his language literally (assuming that his report of what he said is accurate). Even if one did take it literally, his statement was a speculation about the dean’s state of mind, not a statement about his own.

Policies of mandatory investigation are warranted when students report threats. But there needs to be an available mechanism of summary dismissal when such reports turn out to be frivolous. John Marshall Law School has two such mechanisms: First, the Behavioral Threat Assessment Teams are charged with determining whether threats are genuine, and, second, the dean has discretion to accept or reject their recommendations.

It is hard to believe that Dean Dickerson would have reacted the same way if Kilborn’s exam had not already provoked controversy. The complaints about the exam were apparently not sufficient to trigger the sanctions that might mollify the complaining students. The purported threat, however, offered that opportunity.

Given that this whole incident was occasioned by a “Civil Procedure” exam, it is hard not to remark upon the denial of due process. Kilborn has been given no opportunity to defend himself. When students make unreasonable demands, a school has an obligation to protect its faculty. The law school’s behavior is reminiscent of indiscriminate blacklisting during the McCarthy era.

The administration’s behavior creates a climate of terror. Faculty have been asked at many colleges to give more attention to issues of racial inequality. But how are they to do that without acknowledging distressing facts? …

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Civil rights groups across the country are urging President Joe Biden and Vice President Kamala Harris, as well as Congressional Democrats, not to pass new laws to address any potential threats from white nationalists emboldened by and loyal to former President Donald Trump.

In a letter dated Tuesday, 135 civil rights organizations—ranging from religious groups, immigration advocates, and LGBT organizations, to the American Civil Liberties Union and the National Association for the Advancement of Colored People—expressed their concerns about calls to pass new criminal laws in the wake of the riot and temporary invasion of the U.S. Capitol by Trump supporters:

The Justice Department (DOJ), including the Federal Bureau of Investigation (FBI), has over 50 terrorism-related statutes it can use to investigate and prosecute criminal conduct, including white supremacist violence, as well as dozens of other federal statutes relating to hate crimes, organized crime, and violent crimes. The failure to confront and hold accountable white nationalist violence is not a question of not having appropriate tools to employ, but a failure to use those on hand. To date, DOJ has simply decided as a matter of policy and practice not to prioritize white nationalist crimes.

The letter is necessary because Biden and his administration came into the White House already planning to focus on domestic terrorism, and one possibility the transition team was mulling over is the Confronting Threats of Domestic Terrorism Act, H.R. 4192, which was introduced in 2019 by Rep. Adam Schiff (D–Calif.).

The act establishes new offenses whenever somebody commits a violent crime “with the intent to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government….” The law covers crimes like kidnapping, murder, and assault with a dangerous weapon, as well as property damage that “creates a substantial risk of serious bodily injury to any other person.”

The signatories on the letter know exactly where this kind of legislating leads. We literally just said goodbye to a president who ordered the Department of Justice to use every federal law they could against Antifa protesters. The letter observes:

These bills and others with similar provisions are the wrong approach because, as we have seen, they will continue to be used as vehicles to target black and brown communities as they have done since their inception. The federal government has no shortage of counterterrorism powers, and these powers have been and will be again used to unjustly target black and brown communities, including Muslim, Arab, Middle Eastern, and South Asian communities, as well as those engaged in First Amendment-protected activities. The creation of a new federal domestic terrorism crime ignores this reality and would not address the scourge of white nationalism in this country.

The letter writers are not without congressional allies. Rep. Rashida Tlaib (D–Mich.) sent a lengthy letter of her own to congressional leaders, co-signed by nine other Democrats in the House (including New York Rep. Alexandria Ocasio-Cortez), warning that the federal government’s national security powers should not be expanded. Tlaib writes in part:

While many may find comfort in the increased national security powers in the wake of this attack, we must emphasize that we have been here before and we have seen where that road leads. Our history is littered with examples of initiatives sold as being necessary to fight extremism that quickly devolve into tools used for the mass violation of the human and civil rights of the American people… .

I took note yesterday that following the Sept. 11 attacks, many of the new authorities the federal government granted itself in order to fight terrorism ended up actually being used to surveil on and track Americans through NSA records collections and Department of Homeland Security Fusion Centers. While it is a relief that many people with connections to the incoming majority see the danger of expanding federal policing authority, Biden has a lengthy history of support for harsh enforcement. We’ll see if he has truly changed his ways and come around on criminal justice reforms based on what he does here.

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Confirming his decisive break with Donald Trump, Senate Minority Leader Mitch McConnell (R–Ky.) yesterday said the “violent criminals who tried to stop Congress from doing our duty” by invading the Capitol on January 6 were “fed lies” and “provoked by the president and other powerful people.” That characterization, which McConnell offered in a speech on the Senate floor, jibes with the charges in the article of impeachment against Trump that the House of Representatives approved a week after the riot. It therefore suggests that McConnell is open to convicting Trump in the Senate, which would be a strong signal to his fellow Republicans.

The House noted that Trump “repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials.” Trump reiterated those false claims in the speech he delivered to thousands of angry followers, who had gathered in D.C. at his behest to “stop the steal,” shortly before a joint session of Congress was scheduled to affirm President Joe Biden’s election victory. “We won this election, and we won it by a landslide,” Trump said. “If you don’t fight like hell, you’re not going to have a country anymore.” Given the context, the article of impeachment says, Trump’s comments “encouraged—and foreseeably resulted in—lawless action at the Capitol.”

McConnell, who in private reportedly has said he believes Trump committed impeachable offenses, has now publicly endorsed the main thrust of the House’s charges. His reasons for doing so are both personal and political. McConnell—who even before the riot condemned the effort to stop Biden from taking office based on “sweeping conspiracy theories” that sowed doubt about the election “without evidence”—clearly was shaken by the violent invasion of his own workplace. More important, he has decided that the Republican Party’s continued viability depends on separating itself from the dangerous demagogue whose whims have defined its agenda for the last four years.

There are sound reasons for believing that, even aside from the proposition that a political party should stand for something other than a cult of personality. Trump’s domination of the GOP resulted in Democratic control of both the White House and the Senate. The New York Times reports that “McConnell’s allies say he has grown increasingly concerned that if party leaders do not intervene, the president’s campaign to discredit his own defeat could do lasting damage both to democracy and to Republicans’ political fortunes, driving them into a permanent minority in Washington.”

The loss of the Senate was directly attributable to Trump’s fantasy of a stolen presidential election, which he promoted instead of focusing on winning the crucial January 5 runoffs in Georgia. Worse, Trump’s general warnings that absentee ballots are inherently suspect and his specific claim that Georgia’s election system was hopelessly corrupt discouraged even ardent Trump supporters—especially ardent Trump supporters—from voting in those races. And his demand that the party’s Senate candidates in Georgia back up his outlandish claims about massive election fraud probably also turned off voters who were less enamored with Trump. McConnell has Trump to thank for his demotion from majority leader to minority leader.

Although a large bloc of Republicans remains loyal to Trump, recent polling underlines the potential political cost of catering to them. Since the attack on the Capitol, Geoffrey Skelley notes at FiveThirtyEight, “Trump’s approval rating has plummeted at a record rate.” According to the site’s composite index, Trump’s net approval rating—the difference between the percentage of Americans who thought he was doing a good job and the percentage who disagreed—fell from –10.3 points on January 6 to –16.8 points on January 14. That 6.5-point drop in eight days, Skelley says, is “the biggest drop in Trump’s net approval that our tracker has ever recorded.”

For most of Trump’s presidency, the Pew Research Center noted last Friday, his job approval rating “remained more stable than those of his predecessors; it never surpassed 45 percent or dipped below 36 percent.” But the share of Americans who approve of Trump’s performance, according to Pew, “now stands at just 29 percent, down 9 percentage points since August and the lowest of his presidency.”

Gallup puts Trump’s job approval rating at 34 percent, the same as Jimmy Carter’s in 1981 and George W. Bush’s in 2009. No outgoing president has done worse since Harry Truman in 1953. Gallup also notes that Trump’s “41 percent average approval rating throughout his presidency is four points lower than for any of his predecessors in Gallup’s polling era.” Trump is “the only president not to register a 50 percent job approval rating at any point in his presidency since Gallup began measuring presidential job approval in 1938.”

Pew found that three-quarters of Americans, including 52 percent of Republicans and 95 percent of Democrats, believe Trump “bears at least some responsibility” for the Capitol riot. In the same survey, which was conducted January 8–12, more than two-thirds of respondents said they did not think Trump should “continue to be a major political figure for years to come.” Pew did not provide a party breakdown for that question, but we can be pretty sure there was a dramatic split between Republicans and Democrats, and therein lies the risk for McConnell and likeminded Trump critics.

Before the the Capitol riot, polls found a large majority of Republicans agreed with Trump that the presidential election was compromised by widespread fraud. “The only lies that were fed are that Joe Biden won the election,” Amy Kremer, a leader of the “Stop the Steal” movement, tweeted yesterday in response to McConnell’s criticism of Trump. “Your comments are bullshit & if you think Pres Trump’s base is going anywhere, u are sadly mistaken.”

On Fox News—where reporters were skeptical of Trump’s fraud claims from the beginning but several hosts promoted them, only to be rebutted by corrective stories that the channel aired after it was threatened with defamation lawsuits—Sean Hannity slammed McConnell last night. “Soon-to-be Minority Leader Mitch McConnell and a handful of other long-serving establishment Republicans are trying to reassert control of the GOP, and their playbook is sadly all too predictable,” he said. “Instead of picking up the mantle and promoting the president’s bold America First agenda, they are cowering in fear, wilting under the pressure from the media mob, liberal Democrats, and Big Tech companies. Many spineless Republicans are joining forces with their Democratic friends to repudiate all things Trump.”

Hannity was a persistent promoter of the delusion underlying the deadly assault on the Capitol. But he thinks Republicans should forget all that and continue to take their lead from Trump. McConnell thinks that would be a grave political mistake.

Sen. Lindsey Graham (R–S.C.), who years ago switched from harsh criticism of Trump to humiliating obsequiousness, seems to agree with Hannity. “I’m looking for our leadership to recognize that the best thing for the Republican Party and the country” is “moving on,” he said after McConnell’s speech. If “moving on” means consigning Trump’s reckless behavior and its shocking consequences to the memory hole, the GOP will richly deserve the fate that McConnell fears.

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[This post is co-authored with Seth Barrett Tillman.]

The structure of Section 3 of the Fourteenth Amendment is a bit complicated. Section 3 provides:

No 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.

Section 3 has four primary elements. First, the jurisdictional element specifies which positions are subject to Section 3:

A “person . . . 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.”

Second, the offense element defines the conduct prohibited by Section 3. It regulates the conduct of a person satisfying the jurisdictional element who:

“shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”

Third, the disqualification element defines the legal consequences or punishment that Section 3 provides for. A person who satisfies the jurisdictional and offense elements of Section 3 shall not 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”

Fourth, the amnesty or removal element allows Congress to remove the disqualification or disability:

“Congress may by a vote of two-thirds of each House, remove such disability.”

Most of the current debates about Section 3 have focused on the offense element: Has President Trump “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof?” Some recent discussions of Section 3 have glossed over the text of the jurisdictional and disqualification elements. These two elements, which refer to two different types of officers and offices, raise two difficult and novel legal issues. First, does the President meet the jurisdictional element? Second, does the disqualification element extend to the presidency? In this post, we will focus on the first question. 

The Impeachment Clause, Article II, Section 4 of the Constitution of 1788, expressly applies to the President. The Impeachment Clause provides:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” 

But the jurisdictional element of Section 3 does not specifically mention the presidency. Instead of using express language akin to the Impeachment Clause, the jurisdictional element of Section 3 applies to:

A “person . . . 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.”

President Trump has never been a “member of Congress” or “a member of any state legislature” or an “executive or judicial officer of any state.” Therefore, the only way for Section 3’s jurisdictional element to cover President Trump would be if he had taken an oath “to support the Constitution” as an “officer of the United States.” But the sole article of impeachment against President Trump elides over this issue. Indeed, the House’s impeachment article did not discuss Section 3’s jurisdictional element. It states:

Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has “engaged in insurrection or rebellion against” the United States from “hold[ing] any office . . . under the United States”. (emphasis added).

Section 3 does not apply to “any person” or even “any person” who committed the offense element. Here, the House seems to assume that the phrase “officer of the United States” is equivalent to “any person.” Perhaps the House assumed that a President is an “officer of the United States.” Still, the House’s position is not entirely clear. 

By contrast, our position is that there is some good reason to think the presidency is not an “officer of the United States.” The phrase “officers of the United States” is used in the Constitution’s original seven articles. Four provisions of the Constitution of 1788 use the phrase “Officers . . . of the United States”: the Appointments Clause, the Impeachment Clause, the Oaths Clause and the Commissions Clause. We discussed this taxonomy in September 2017.

First, the Appointments Clause spells out with clarity that the president can nominate “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” (emphasis added) . . . 

Second, the Impeachment Clause expressly provides that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment. …” (emphasis added) Justice Story explained that the President and Vice President’s [express] enumeration in the Impeachment Clause in addition to “all civil Officers of the United States” shows that the President and Vice President are not deemed “officers of the United States” themselves. Otherwise, the Framers would have stated that “all other civil officers” were subject to impeachment. (emphasis added)

Further, the Oaths Clause specifically enumerates that “Senators and Representatives, and the Members of the several State Legislatures,” as well as “all executive and judicial Officers, both of the United States and of the several States of the United States” were required to be “bound by Oath or Affirmation to, support this Constitution.” . . . 

Finally, the Commissions Clause provides that “all the officers of the United States” receive presidential commissions. (emphasis added) All means all. This structure explains why appointed executive-branch and judicial-branch officers receive commissions, but there is no record of any elected official, whether a President, Vice President or a member of Congress, ever receiving a [presidential] commission. The reason is simple: Elected officials like the President are not “Officers of the United States.”

There is a recent Supreme Court opinion discussing the scope of the Constitution’s “Officers of the United States”-language. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. (2010), Chief Justice Roberts observed that “[t]he people do not vote for the ‘Officers of the United States.'” Rather, “officers of the United States” are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an “officer of the United States.”

Still, critics may argue that the meaning of the phrase “officer of the United States” in Section 3 is different from the meaning of the phrase “officers of the United States” in the Constitution’s original seven articles. In other words, there was some linguistic drift or slippage between the 1788 ratification of the Constitution and the 1868 ratification of the Fourteenth Amendment. Let’s assume that the President is not an “officer[] of the United States” for purposes of the 1788 Constitution. Under that assumption, it is possible that the President might be an “officer of the United States” for purposes of Section 3. Thus, a reader might take the limited position that the President is an “officer of the United States” for the purposes of Section 3.

This position is conceivable. In 2011, Tillman wrote that “[t]he stretch of time between the two events [1788 and 1868] was more than half a century. . . . It is hardly surprising that in the post-bellum epoch new meanings might have accrued to older language. Such linguistic slippage is common.” (emphasis added). Still, absent contrary evidence, the default presumption should be one of linguistic stability, rather than of linguistic drift. In other words, the proponents of the view that Section 3’s jurisdictional element applies to the presidency have the burden to show either (1) that the particular linguistic drift involving the Constitution’s “officer of the United States”-language has actually occurred or, (2) at the very least, that Section 3’s “officer of the United States”-language, in fact, extends to the presidency. Their position has not yet been supported in any comprehensive or systematic fashion. That position cannot simply be asserted or presumed, absent evidence, that the original public meaning of the phrase “officer of the United States” encompassed the presidency when the Fourteenth Amendment was ratified. Advocates for Section 3 disqualification of President Trump have a burden of production and persuasion to come forward with at least some evidence supporting their view. We have always had a healthy respect for the considered views and intuitions of academics immersed in law, history, and allied fields of scholarly inquiry. But evidence should be something more than personal intuitions or citations to the conclusory statements of other modern commentators asserting how the 1868 public must have understood the language of Section 3. 

Moreover, there is some good authority to reject the position that Section 3’s “officer of the United States”-language extends to the presidency. In United States v. Mouat (1888), Justice Samuel Miller interpreted a statute that used the phrase “officers of the United States.” He wrote, “[u]nless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States.” Justice Miller’s opinion, drafted two decades after the Fourteenth Amendment’s ratification, is some probative evidence of the original public meaning of Section 3’s “officer of the United States”-language. Miller’s opinion is some evidence rebutting any presumption of post-1788 linguistic drift with respect to the phrase “officer of the United States.” Likewise Mouat rebuts the position that, circa 1868, the obvious, plain, or clear meaning of the phrase “officer of the United States” extended to the presidency. 

The Executive Branch has long relied on Justice Miller’s discussion of “officers of the United States” in Mouat. In 1943, Attorney General Francis Biddle cited Miller’s opinion, and explained that “under the Constitution of the United States, all its officers were appointed by the President . . . or heads of departments or the courts of law.” (emphases added). Biddle’s reading of Mouat did not distinguish “officers of the United States” as used in a statute from “officers of the United States” as used in the Constitution. In 2007, the Office of Legal Counsel reaffirmed this position. The Executive Branch has long taken the position that the phrase “officers of the United States” does not extend beyond persons appointed pursuant to Article II, Section 2 procedures. A memorandum by the Biden Administration’s OLC or an argument by House managers that the President is an “officer of the United States” would be in tension with prior DOJ memoranda.

Justice Miller and the Department of Justice are not alone. There is additional evidence that is roughly contemporaneous with the ratification of the Fourteenth Amendment. During the 1876 impeachment trial of William Belknap, Senator Newton Booth from California observed, “the President is not an officer of the United States.” Instead, Booth argued, the President is “part of the Government.” And David McKnight’s 1878 treatise on the American electoral system reached a similar conclusion. McKnight wrote that “[i]t is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.'” These sources tend to rebut any argument in favor of post-1788 linguistic drift with respect to the phrase “officer of the United States.” Likewise, these sources provide some evidence that in the period following the Civil War the phrase “officer of the United States” did not extend to elected positions, including the presidency.

So far, advocates for Section 3 disqualification of President Trump have not advanced comprehensive or systematic evidence that the President is an “officer of the United States.” They have the burden to establish that the “officer of the United States”-language of Section 3’s jurisdictional element extends to the presidency. They should also rebut the evidence we have put forward in this post (and elsewhere, on many prior occasions). 

It is not enough for the proponents of Section 3 disqualification against President Trump to argue that their textual position is conceivable. We do not doubt that it is conceivable. Rather, proponents of a Section 3 disqualification must offer evidence that establishes their view as the better view. To date, the proponents of Section 3 disqualification have not met this burden. 

Some of our critics may respond with something akin to a purposivist argument: the Framers of the Fourteenth Amendment would have never intended to exclude the presidency from the jurisdictional element of Section 3. Could it really be, the argument goes, that virtually every elected and appointed position in the federal and state governments would be encompassed by Section 3’s jurisdictional element, but not the presidency? After all, a former President of the United States—John Tyler—actually was elected to the Confederate congress! Would the Framers really exempt Tyler (or men like him) from disqualification? (Professor Magliocca made a related point in a recent Balkinization post.) And John Breckinridge, who had served as Vice President of the United States under President Buchanan, later served as a general in the Confederate army. 

There is a pragmatic rationale that explains why the presidency and vice presidency were excluded from the jurisdictional element of Section 3. By the time the Fourteenth Amendment was approved in 1868, there were no living Presidents that had supported the Confederacy. Tyler had already died in 1862. The other living former Presidents (Fillmore, Pierce, Buchanan, and Johnson) had not supported the Confederacy. Moreover, Breckinridge, a former Vice President of the United States who joined the Confederacy, had previously served as a U.S. Senator. Therefore, he was already clearly covered by Section 3’s jurisdictional element. Thus, the Framers of the Fourteenth Amendment—whose focus was on past wrongdoing during the Civil War—had no pressing reason to draft Section 3’s jurisdictional element to cover former or future U.S. Presidents. 

We think the democracy canon provides further support for our position. Professor Richard L. Hasen explains that under this canon a provision of the Constitution that might be read to “limit the citizen in his exercise of [the right of suffrage] should be liberally construed in his favor.” This policy concern equally applies to the political candidate who wishes to run for a specific position. Given two reasonable readings of the Constitution and its “officer of the United States”-language, the democracy canon favors the reading that expands democratic choice. Under what appears to be the House’s reading of Section 3, voters and electors nationwide are permanently disenfranchised from selecting a presidential candidate. Under our approach, voters and electors can select the President of their choice. We should prefer the latter reading. The House’s approach is inconsistent with the democracy canon.

We should not read Section 3’s text through the lens of the transitory and felt needs of the moment. The original public meaning of the Fourteenth Amendment, including Section 3’s jurisdictional element, was fixed more than 150 years ago.

Right now, the Senate is not squarely faced with the question of whether a Section 3 disqualification against President Trump would bar him from running for the presidency in the future. Similarly, even if the Senate convicts President Trump in ongoing impeachment proceedings, and votes to disqualify him under the Impeachment Disqualification Clause, it is not the Senate which will finally resolve the scope of that disqualification. To be sure, members of Congress can state on the record that they are barring Trump from ever serving again as President. But those statements are not dispositive of the constitutional issue. Rather, if Trump decides to seek re-election at some future date, state and territorial boards of election would have to decide if Senate disqualification under the Impeachment Disqualification Clause, or, perhaps, a Senate vote to disqualify him under Section 3, would bar Trump from the ballot. Alternatively, boards of election would have to determine the effect (if any) should Congress pass a Section 3 concurrent or joint resolution against President Trump’s holding an “office . . . under the United States.” In each of these situations, as a general matter, the determinations of boards of election could be appealed to the courts. In all likelihood, it is not Congress, but the courts which would have the final say in regard to resolving the scope of congressional or Senate disqualification.

As explained, the courts may be asked to adjudicate the effect of: (1) a Senate disqualification under the Impeachment Disqualification Clause, (2) a Senate vote to disqualify under Section 3, or (3) a congressional concurrent or joint resolution purporting to give effect to Section 3. The courts may also be asked to decide an appeal of a decision by an elections board in regard to a ballot-access dispute, which may involve issues (1) to (3). Alternatively, even in the absence of any disqualification decision by the Senate or by Congress, an elections board might decide a Section 3-related ballot challenge. Likewise, in the absence of any disqualification decision by the Senate or by Congress, the courts may be asked to decide, in the first instance, whether President Trump was disqualified for purposes of Section 3. Clearly, there are many possible routes through which these issues might be litigated before boards of election, the courts, or both. Still, there is a common thread: If the presidency is not an “officer of the United States” as that phrase was used in Section 3’s jurisdictional element, then President Trump cannot be disqualified under Section 3. 

Moreover, if the courts agree that Section 3’s jurisdictional element does not apply to the presidency, then the courts would not need to decide if the “office . . . under the United States”-language used in the disqualification element of Section 3 (and elsewhere in the Constitution) extends to the presidency. Similar difficult and novel issues would arise should the Senate vote to disqualify President Trump under the Impeachment Disqualification Clause, which, like Section 3, also uses “office . . . under the United States”-language. 

Finally, it is not clear that the House managers seek to disqualify Trump under the Impeachment Disqualification Clause, as well as under Section 3. The sole article of impeachment is opaque on this point. It references Section 3, but we think it is only referenced in the context of efforts to define a substantive impeachable offense. We expect that President Trump’s counsel will argue that the text of the House’s single article of impeachment does not give him fair notice that he faces Section 3 disqualification. Once again, the House’s rushed drafting may determine the fate of the Senate impeachment trial.

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

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Barenblatt v. U.S. (1959) upheld the House Un-American Activities Committee’s demand that Lloyd Barenblatt, a professor, testify about his alleged Communist activities while a graduate student. Justice Hugo Black, joined by Chief Justice Earl Warren and Justice William O. Douglas, dissented; I’ve long found the opinion to be particularly thoughtful and forceful, and since I was reminded of it while preparing for my First Amendment Law class next week, I decided to pass along some excerpts:

[A.] I do not agree that laws directly abridging First Amendment freedoms can be justified by a congressional or judicial balancing process…. But even assuming what I cannot assume, that some balancing is proper in this case, I feel that the Court after stating the test ignores it completely. At most it balances the right of the Government to preserve itself, against Barenblatt’s right to refrain from revealing Communist affiliations.

Such a balance, however, mistakes the factors to be weighed. In the first place, it completely leaves out the real interest in Barenblatt’s silence, the interest of the people as a whole in being able to join organizations, advocate causes and make political “mistakes” without later being subjected to governmental penalties for having dared to think for themselves.

It is this right, the right to err politically, which keeps us strong as a Nation. For no number of laws against communism can have as much effect as the personal conviction which comes from having heard its arguments and rejected them, or from having once accepted its tenets and later recognized their worthlessness.

Instead, the obloquy which results from investigations such as this not only stifles “mistakes” but prevents all but the most courageous from hazarding any views which might at some later time become disfavored. This result, whose importance cannot be overestimated, is doubly crucial when it affects the universities, on which we must largely rely for the experimentation and development of new ideas essential to our country’s welfare. It is these interests of society, rather than Barenblatt’s own right to silence, which I think the Court should put on the balance against the demands of the Government, if any balancing process is to be tolerated….

[B.] Moreover, I cannot agree with the Court’s notion that First Amendment freedoms must be abridged in order to “preserve” our country…. The First Amendment means to me, however, that the only constitutional way our Government can preserve itself is to leave its people the fullest possible freedom to praise, criticize or discuss, as they see fit, all governmental policies and to suggest, if they desire, that even its most fundamental postulates are bad and should be changed[:] {“The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”}

On that premise this land was created, and on that premise it has grown to greatness. Our Constitution assumes that the common sense of the people and their attachment to our country will enable them, after free discussion, to withstand ideas that are wrong. To say that our patriotism must be protected against false ideas by means other than these is, I think, to make a baseless charge. Unless we can rely on these qualities—if, in short, we begin to punish speech—we cannot honestly proclaim ourselves to be a free Nation and we have lost what the Founders of this land risked their lives and their sacred honor to defend.

[C.] The Court implies, however, that the ordinary rules and requirements of the Constitution do not apply because the Committee is merely after Communists and they do not constitute a political party but only a criminal gang…. Of course it has always been recognized that members of the Party who, either individually or in combination, commit acts in violation of valid laws can be prosecuted. But the Party as a whole and innocent members of it could not be attainted merely because it had some illegal aims and because some of its members were lawbreakers….

[N]o matter how often or how quickly we repeat the claim that the Communist Party is not a political party, we cannot outlaw it, as a group, without endangering the liberty of all of us.

The reason is not hard to find, for mixed among those aims of communism which are illegal are perfectly normal political and social goals. And muddled with its revolutionary tenets is a drive to achieve power through the ballot, if it can be done. These things necessarily make it a political party whatever other, illegal, aims it may have….

The fact is that once we allow any group which has some political aims or ideas to be driven from the ballot and from the battle for men’s minds because some of its members are bad and some of its tenets are illegal, no group is safe. Today we deal with Communists or suspected Communists. In 1920, instead, the New York Assembly suspended duly elected legislators on the ground that, being Socialists, they were disloyal to the country’s principles. In the 1830’s the Masons were hunted as outlaws and subversives, and abolitionists were considered revolutionaries of the most dangerous kind in both North and South.

Earlier still, at the time of the universally unlamented alien and sedition laws, Thomas Jefferson’s party was attacked and its members were derisively called “Jacobins.” Fisher Ames described the party as a “French faction” guilty of “subversion” and “officered, regimented and formed to subordination.” Its members, he claimed, intended to “take arms against the laws as soon as they dare.”

History should teach us then, that in times of high emotional excitement minority parties and groups which advocate extremely unpopular social or governmental innovations will always be typed as criminal gangs and attempts will always be made to drive them out. It was knowledge of this fact, and of its great dangers, that caused the Founders of our land to enact the First Amendment as a guarantee that neither Congress nor the people would do anything to hinder or destroy the capacity of individuals and groups to seek converts and votes for any cause, however radical or unpalatable their principles might seem under the accepted notions of the time….

Today’s holding, in my judgment, marks another major step in the progressively increasing retreat from the safeguards of the First Amendment. It is, sadly, no answer to say that this Court will not allow the trend to overwhelm us; that today’s holding will be strictly confined to “Communists,” as the Court’s language implies. This decision can no more be contained than could the holding in American Communications Assn. v. Douds (1950). In that case the Court sustained as an exercise of the commerce power an Act which required labor union officials to take an oath that they were not members of the Communist Party. The Court rejected the idea that the Douds holding meant that the Party and all its members could be attainted because of their Communist beliefs. It went to great lengths to explain that the Act held valid “touches only a relative handful of persons, leaving the great majority of persons of the identified affiliations and beliefs completely free from restraint.”

“[W]hile this Court sits,” the Court proclaimed, no wholesale proscription of Communists or their Party can occur.  I dissented and said:

“Under such circumstances, restrictions imposed on proscribed groups are seldom static, even though the rate of expansion may not move in geometric progression from discrimination to arm-band to ghetto and worse. Thus I cannot regard the Court’s holding as one which merely bars Communists from holding union office and nothing more. For its reasoning would apply just as forcibly to statutes barring Communists and their respective sympathizers from election to political office, mere membership in unions, and in fact from getting or holding any job whereby they could earn a living.”

My prediction was all too accurate. Today, Communists or suspected Communists have been denied an opportunity to work as government employees, lawyers, doctors, teachers, pharmacists, veterinarians, subway conductors, industrial workers and in just about any other job. In today’s holding they are singled out and, as a class, are subjected to inquisitions which the Court suggests would be unconstitutional but for the fact of “Communism.” Nevertheless, this Court still sits!

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President Donald Trump likes to win. As his time in the Oval Office comes to an end today, there’s at least one accolade he can confidently claim: He has instituted some of the most inhumane immigration policies of any modern president. From separating families at the border as part of a “zero-tolerance” policy, to weaponizing immigrants’ legal status for political power, to frivolously pulling visas without explanation or justification, to zeroing in on Good Samaritans, to hiring a ruthless nativist as his primary policy architect, Trump leaves Washington with a record that should draw the ire of anyone who cares about basic freedoms.

But what about President-elect Joe Biden, whose former boss, President Barack Obama, earned the moniker “deporter in chief” for his record-setting focus on expelling immigrants?

He promises to be better. The incoming president has constructed the U.S. Citizenship Act of 2021, which would provide immigrants with a five-year path to a green card and a subsequent three-year path to citizenship if they meet a set of obligations, including passing a background check and paying taxes. In order to disincentivize a rush to the border, the bill requires that recipients have lived in the U.S. since January 1, 2021.

On border security, Biden says he will cease construction of enhanced border barriers and instead will hone in on technology to “to expedite screening and enhance the ability to identify narcotics and other contraband at every land, air, and sea port of entry,” the administration notes in a press release.

Biden will also immediately move to reverse restrictions on the Deferred Action for Childhood Arrivals (DACA) program, the policy that provides work permits and deportation protection to immigrants who were brought to the U.S. as young children through no fault of their own. Trump initially sought to terminate the program, but after failing in the courts pivoted to curtailing it instead.

Yet although DACA has widespread bipartisan support, it was always on precarious footing since Obama implemented it via executive order. Biden’s plan will reportedly provide the 640,000 immigrants who qualify with the opportunity to apply for a green card without delay, although his administration’s press release did not allude to that. He will further move to rescind Trump’s travel ban on 13 countries via executive action.

A significant move that will get less attention: Biden will restrict who Immigration and Customs Enforcement (ICE) can arrest and deport, an effort initially put in place by Obama but overturned by Trump. Deportations for immigrants without criminal records will likely be deprioritized in favor of those who actually present a threat.

He has also intimated that he will work to end the Trump administration’s “Remain in Mexico” policy, which kept a migrant from entering the United States while their asylum case wound its way through the courts. That will be a lengthier endeavor. The program was “a disaster from the start and has led to a humanitarian crisis in northern Mexico,” said Jake Sullivan, Biden’s national security adviser, “but putting the new policy into practice will take time.”

In that vein, the newly minted president will seek to focus on addressing the root causes of why so many Central American migrants are flooding the U.S. border, though it’s hard to see how the result of such efforts will yield more productive results than, say, regime change attempts abroad. Pouring American taxpayer dollars into those countries is a dubious solution, namely because it doesn’t work.

“We made a mistake,” Biden said during October’s presidential debate, referencing Obama’s immigration approach. “It took too long to get it right. I’ll be president of the United States, not vice president of the United States.” In a very short time, he will indeed be president, and time will tell if he gets it right.

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