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.
U.S. Const., amend. XIV § 3 (emphasis added).
What the Supreme Court did today was essentially declare the foregoing provision of the Constitution a dead letter, by making it all but impossible to enforce it.
According the Court, (1) only Congress can enforce it, and (2) it must (and can only) do so by legislation. However:
No Bill of Attainder or ex post facto Law shall be passed.
U.S. Const., Art. I § 9 cl. 3.
A bill of attainder is a law that punishes a specific individual or group. A law passed by Congress that a certain individual “shall not be” a Senator or Congressperson “or hold [the] office” of President, would be an unconstitutional bill of attainder.
If Congress passed a law that tracks the language of section 3 verbatim as set forth above (“No person shall...”, &c.), how could Congress — as distinct from, e.g., the Justice Department, the courts, or the States — enforce it? Legislation alone makes the scenario illegal, but what happens next? How can Congress ensure that “no person who, having previously taken an oath … to support the Constitution … engaged in insurrection” “shall be” a Congressperson or Senator “or hold” any other federal office including the presidency?
If Congress passed a law, under section 5 of the 14th Amendment, requiring the states to remove from their general federal election ballots any person who “engaged in insurrection” under the 14th Amendment, how would Congress go about enforcing that if, e.g., as the Court apparently fears, different states reach different conclusions? (Again, a law directing the states to remove a particular person from their ballots would be an unconstitutional bill of attainder.)
There are a lot more questions that the decision comes nowhere close to answering. It is not at all clear from the decision exactly what the Court expects Congress to do to enforce the “No person shall...” language of section 3; indeed, as the three “liberal” justices pointed out in concurring in the judgment, the majority opinion appears to have been designed specifically “to foreclose future efforts to disqualify a Presidential candidate under that provision.” (emphasis added).
I think what is clear from the decision is this: In ruling that only Congress can enforce the “No person shall...” language of section 3, the Court has implicitly held that Congress can simply choose not to enforce the “No person shall...” language of section 3. What that means is that Congress can, by doing nothing at all, nullify this express, unequivocal constitutional mandate, without the need for “a vote of two-thirds of each House, [to] remove such disability.” Which means, the entire provision is a dead letter.