Arguing the Unprecedented

During the first year of law school, most of us learned about “stare decisis” (or the doctrine of precedent) and which authorities are binding and which are merely persuasive.  We were taught a hierarchy of authority and how to effectively use various decisions to advocate on behalf of a client.  And I suspect many of our professors suggested that policy arguments were on the weaker end of the spectrum and should be relied on only if insufficient precedent existed to draw from.

But listening to the oral arguments in Trump v. Anderson[i] got me thinking about the value of policy arguments and whether our priorities are misplaced.  While stare decisis certainly lends a great amount of predictability to the legal system, it works only if there is, in fact, precedent to draw upon.

Jason Murray, counsel for Anderson et al., was asked on multiple occasions by Justice Thomas for any examples he could produce to support his argument that a state has the authority to disqualify a national candidate.  And Jonathan Mitchell, counsel for Trump, relied almost exclusively on a single case:  In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869), which Justice Sotomayor directly noted “was not a precedential Supreme Court decision.”

The case is unprecedented in a multitude of ways:

1. Trump is the only former president other than George Washington who did not take an oath to support the Constitution.[ii]
2. Section 3 of the Fourteenth Amendment has never been used to block a presidential candidate from a ballot.
3. No case has ever interpreted whether the president falls within the scope of § 3.[iii]
4. No case has determined what process, if any, is due with respect to the determination of whether a person “engaged in insurrection” for purposes of § 3.

Even the Griffin case, upon which Mitchell hung his hat, is not all that instructive or persuasive.  Griffin was a habeas action wherein the petitioner sought to have his conviction vacated because the judge who presided over his trial had been a sympathizer of the Confederacy.[iv]  The petitioner argued that § 3 was self-executing, resulting in the judge being a usurper of his position without legal authority to sit on any cases or render any judgments.[v]  The petitioner’s end game was to vacate his conviction as void; he expressly disavowed any effort to remove the judge from his position, much less prevent the judge from running for office at a later date.[vi]  And, even the opinion’s one relevant holding—that § 3 is not self-executing and, instead, requires action by Congress—is weak precedent given that Chief Justice Chase (who authored the decision) held exactly the opposite only a couple years later in the trial of Jefferson Davis for treason.[vii]  Judge Wynn of the Fourth Circuit recently noted that the contradictory holdings in both Griffin and Davis “make it hard to trust [Justice] Chase’s interpretation.”[viii]

This absence of precedent left the parties with two options:  statutory interpretation and policy justifications for their respective positions.  While there were certainly legitimate statutory interpretation arguments available,[ix] others depended upon legislative intent, using such disfavored canons of construction as “expressio unius est exclusio alterius,”[x] or remarks from one of the drafters.[xi]

But the main sticking point that most of the Court kept coming back to was ultimately a policy-based issue:  “why [should] a single state . . . decide who gets to be president of the United States”?[xii] Though a decision has not yet been handed down in the case, and the Court has numerous legal grounds upon which to base its decision, it may very well be this unanswerable question that drives the outcome at the end of the day—even if not expressly included in the language of the Court’s opinion.

By many measures, we live in unprecedented times. “Unprecedented” was even the People’s Choice Word of the Year for 2020 according to Dictionary.com.[xiii]  It seems inevitable that more and more legal issues will be unprecedented as well.  Perhaps our policy-based arguments should play a more prominent role.

 

[i] https://www.oyez.org/cases/2023/23-719.

[ii] The presidential oath contains an oath to preserve, protect, and defend the constitution:  “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”  But it does not contain an oath to “support the Constitution” as is contemplated by § 3 of the Fourteenth Amendment.  The oath for the vice presidents, senators, representatives, and other federal employees, on the other hand, does include an oath to support the Constitution:  “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”  Inauguration of the President of the United States, available at:  https://www.usa.gov/inauguration (last accessed Feb. 12, 2024).  Because Trump never served in Congress or held any other federal office before becoming president, he was never required to take an oath to support the Constitution, making his position unique and unprecedented even among other former presidents.

[iii] Arguably, there is precedent that § 3 was applied to “a” president (at least nominally) insofar as it was applied to Jefferson Davis, former president of the Confederate States of America. In re Davis, 7 F. Cas. 63, 89 (C.C.D. Va. 1871). But, even there, Davis fell within the scope, not as a president, but because he had taken an oath to support the constitution as a former member of the United States Congress in 1845.  Id. at 90.

[iv] In re Griffin, 11 F. Cas. 7, 12 (C.C.D. Va. 1869).

[v] Id.

[vi] Id. at 14-15.

[vii] In re Davis, 7 F. Cas. 63, 89 (C.C.D. Va. 1871) (holding that § 3 “executes itself, acting proprio vigore.  It needs not legislation on the part of congress to give it effect. From the very date of its ratification by a sufficient number of states it begins to have all the effect that its tenor gives it.”).

[viii] Cawthorn v. Amalfi, 35 F.4th 245, 278 n.16 (4th Cir. 2022) (Wynn, J., concurring). Judge Wynn also noted that neither Griffin nor Davis were binding because, even though Justice Chase was then the Chief Justice of the United States, both decisions were made while he was acting as a circuit judge.  Id.

[ix] The parties argued about the meanings of the phrases “office . . . under the United States” and “officer of the United States” by comparing the meanings of the same or similar phrases in other parts of the Constitution.

[x] The canon “expressio unius est exclusio alterius” means “to express or include one thing implies the exclusion of the other.” Expressio Unius Est Exclusio Alterius, Black's Law Dictionary (11th ed. 2019). This idea was used to argue that, by expressly including positions other than the presidency from the list of those upon whom § 3 operates, the drafters intended to exclude the presidency from its scope.  This canon “does not apply to every statutory listing or grouping; it has force only when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.”  Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003).

[xi] In response to a question from Justice Jackson as to why the drafters omitted the president from the list if they, in fact, intended the presidency to be covered, Murray noted that one of the drafters, in response to a question about why neither president nor vice president were included in the list, indicated that they were covered by the phrase “any office under the United States.” Later, in response to similar questions from Justice Jackson, Mitchell seemed to agree, stating that “there is some evidence to suggest that [the presidency was what they were focused on]” and one draft of § 3 “specifically mentioned the presidency and the vice presidency.” https://www.oyez.org/cases/2023/23-719.  But “the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history.”  Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980).

[xii] Justice Elena Kagan, oral argument in Trump v. Anderson, available at https://www.oyez.org/cases/2023/23-719.

[xiii] https://www.dictionary.com/e/peoples-choice-word-of-the-year-2020/.