Representative Madison Cawthorn’s political career is over for the moment, but the disqualification challenge that dogged his re-election run is suddenly alive, at least in the Fourth United States Circuit. For the first time, a federal appeals court ruled that the Disqualification Clause of the Fourteenth Amendment, passed in the wake of the Civil War, applies in the present. Three riders of the Fourth Circuit reversed an earlier district court victory for Mr. Cawthorn by refuting the lower court’s holding that the 1872 Amnesty Act, passed four years after the 14th Amendment, applied prospectively to all future insurrections. The Fourth Circuit rejected the argument that Mr. Cawthorn’s primary loss rendered the question moot, or not a live issue. The Constitution’s “Case and Controversy Clause” limits the jurisdiction of federal courts to actual cases and controversies, live questions that have not been settled. Yet the circuit riders brushed that pecksniffery aside. By arguing that the Amnesty Act “prohibits not just a particular result — disqualifying him from the ballot — but also applying the State’s challenge process to him in the first place,” the court asserted that Mr. Cawthorn had already been impaired regardless of the outcome of his race. By choosing to answer the question of whether current candidates can be subject to disqualification — and answering it in the affirmative — the court ensured that it won’t expire with Mr. Cawthorn’s loss, extending the legal halflife of this provision of the Fourteenth Amendment. Moving to the merits after, in their own words, clearing “the procedural underbrush,” the riders opined that “the 1872 Amnesty Act removed the Fourteenth Amendment’s eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment.”The majority opinion, written by Judge Heytens, went on to say that “having specifically decided to withhold amnesty from the actual Jefferson Davis, the notion that the 1872 Congress simultaneously deemed any future Davis worthy of categorical advance forgiveness seems quite a stretch.”The judges note that the 1872 Act is written in the past tense — “it refers to things that have already happened, not those yet to come.” Deprived of its future resonance, the Act is unable to reach its prospective shield to Mr. Cawthorn’s actions on January 6, 2021. The court was careful to note that it expresses “no opinion” about whether Mr. Cawthorn in fact engaged in “insurrection or rebellion” or is otherwise qualified to serve in Congress. The majority opinion also did not come down on the extent of the ability of states to determine the eligibility of candidates for office.However, the issue of whether Congress or individual states are ultimately tasked with monitoring the qualifications of federal representatives is likely to be one that continues to generate constitutional heat. In this case, two concurrences assumed opposing views on this question. Free Speech for People, the left-leaning group that has spearheaded the challenge to Mr. Cawthorn and other candidates nationwide, crowed that “the ruling cements the growing judicial consensus that the 1872 Amnesty Act does not shield the insurrectionists of January 6, 2021 — including Donald Trump.”With an appeals court now ruling that the field is clear for ballot challenges on the basis of the Disqualification Clause, there can be little doubt that should President Trump run in 2024, he will be not just on the ballot, but on the federal docket.
