(1) Congress can (only) remove the Sec. 3 disability by 2/3 vote.
(2) Imposition of the Sec. 3 disability requires Congress to pass a statute.
(3) Congress can overturn a statute by majority vote -- thus removing the Sec. 3 disability.
The Court says (2). Then contradiction between (1) and (3).
It’s pretty dispiriting to see some relative praise among the law commentariat for the liberal Justices’ concurrence-dissent. Sure, they threw out some zingers, but they still enabled the same bad result because they entirely invented the proposition that states can’t disqualify.
There have been other Roberts Court decisions with worse consequences, but in some ways Trump v. Anderson has done the most to make me doubt the plausibility of our most basic understanding of what courts do.
I used to think that courts at least had to apply the most precise constitutional requirements as written. But the majority seems pretty comfortable with taking a red pen to the Constitution.
Not only is it a red pen, it’s the word “only” written in disappearing ink before “Congress” in section 5. Textualism and originalism are not very compelling methods when used in exclusion but this case is a pure failure at both.
Dobbs and Shelby County, plus the Medicaid provisions of NFIB v Sebelius all come to mind. But yeah, this one is, I’m sorry to say, incompetent appellate judging.
I'm curious. When Congress voted to lift the disability from the Confederates, did anyone argue that it wasn't necessary because they hadn't voted to implement it?
For (3) Congress would need President’s approval or a veto proof majority, but regardless, the Framers of the 14th were very clear that S5 was there to empower Congress to regulate the States, a power it didn’t previously have. S5 isn’t there to make the whole Amendment dormant without legislation.
True that presidential participation would be necessary for legislation, but I don't think that avoids the contradiction. And yes, the presumption is definitely that provisions of the Fourteenth Amendment are self-executing!
