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February 8, 2024

No criminal law opinions from SCOTUS on day of oral argument over constitutional collateral consequences

Though many SCOTUS watchers are understandably focused on today's oral argument in Trump v. Anderson, I flagged earlier this week in this post that I was hoping the Pulsifer case dealing with a sentencing provision of the FIRST STEP Act would be handed down this morning.  But, as I had predicted and feared, we today only got from the Justices two opinions in civil cases, both of which were relatively short and unanimous (though one ruling, in Murray v. UBS Securities, engages a kind of mens rea issue under the whistleblower provision of the Sarbanes-Oxley Act.)

But while reflecting on today's SCOTUS activities, I got to thinking about whether it might be fair and perhaps even useful to describe the issue before the Court in Trump v. Anderson as concerning what might be called a distinctive "constitutional collateral consequence."  Specifically, Section 3 of the 14th Amendment provides that certain persons who "have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof" shall not be allowed to hold certain government jobs.  And, notably, this Section also provide a means of "record relief": "Congress may by a vote of two-thirds of each House, remove such disability."

I have only vaguely followed all the debates and discussions surrounding the proper interpretation of Section 3, and I am glad lots of other folks are far more engaged by all the historical, doctrinal and pragmatic issues to consider in this matter.  How SCOTUS discusses this provision during oral argument today and in its ultimate ruling will certainly serve to define just how Section 3 is viewed and framed in this election year and beyond.  But I wonder if others think it useful or perhaps silly to view of this part of the 14th Amendment as a kind of "constitutional collateral consequence."

February 8, 2024 at 10:34 AM | Permalink


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