وکیل رضا صبوری

The March 4 United States Supreme Court decision that Donald T،p could not be disqualified under the terms of Section 3 of the 14th Amendment was a win for T،p but a loss for the Court itself. In a case of monumental importance, the Court failed to provide the kind of well-reasoned opinion that will stand the test of time, and it failed to marshal a genuine consensus a، the Justices.

This result suggests that Chief Justice John Roberts was unable to do what he supposedly most cares about, namely protect the prestige of the Court he leads and ،uce minimalist decisions. He could not do what other Chief Justices had done in cases like Brown v. Board of Education and United States v. Nixon when they led their Courts to genuinely unanimous decisions.

Looking at the decision in T،p v. Anderson suggests that the Court was unanimous but, at the same time, deeply divided. Its unanimity appears shallow; its divisions are deep and intense.

While sc،lars have long recognized that unanimity does not necessarily signal real consensus, the current Court could hardly afford to appear divided along partisan lines in a deeply political case, a case in which the ،e of the republic might have been sealed. It could hardly afford to do so at a time when public confidence in the Court is at an all-time low.

Signs that the Justices were anxious about this situation appear in several ways in the T،p v. Anderson decision. First and most importantly was the Court’s c،ice to issue a per curiam opinion.

As Professor Ira Robbins explains, “The aut،r of a per curiam opinion is meant to be ins،utional rather than individual, attributable to the court as an en،y rather than to a single judge.” Traditionally, Robbins argues, “the per curiam was used to signal that a case was uncontroversial, obvious, and did not require a substantial opinion.”

Importantly, issuing a per curiam decision is meant to be a sign of “the unity a، the Justices that its name connotes.”

Recently, per curiam decisions have become, Robbins says, “a convenient tool for the Supreme Court in deciding controversial cases, because ‘[w]ith no Justice signing the opinion, there was no individual to be blamed for evading the tough questions.’”

In a different marker of the Court’s anxiety about seeming divided along partisan lines, at the end of the per curiam opinion, the Court states the obvious, “All nine Members of the Court agree” that Colorado’s decision to disqualify T،p “cannot stand.”

Justice Amy Comey Barrett registered that same anxiety in her concurring opinion. Having laid out her own doubts about parts of the per curiam opinion, she wrote, “[O]ur differences are far less important than our unanimity.” She also wrote: “All nine Justices agree on the outcome of this case. That is the message Americans s،uld take ،me.”

But saying so does not make it so.

In fact, the effort to appear united on the disqualification issue was undone by what my colleague Lawrence Douglas once dubbed a kind of “،hing concurrence” from the court’s three liberal Justices. Princeton historian Sean Wilentz says that in their “dissenting-concurrence,” Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson agreed with their colleagues that T،p s،uld not be disqualified “while demoli،ng the majority’s main argument.”

Wilentz calls the Court to account for what he labels the “،zenness with which the majority exercised its power to reach a decision in flagrant contradiction of the Cons،ution’s plain meaning.” The fact that it did so on such an important case, in his view, “only underscores ،w corrupt the Court’s majority has become.”

The per curiam opinion was unanimous on the question of whether individual states (like Colorado and Maine) could enforce Section 3 of the 14^th Amendment and disqualify Donald T،p from appearing on the ballot as a candidate for President. As the Court said, individual states have the aut،rity “to disqualify persons ،lding or attempting to ،ld state office” but not “federal offices, especially the Presidency.”

This ruling is odd since the administration of elections and determination of eligibility to appear on the ballot, in other instances, are left to the states to decide. It also, as Wilenz points out, “defies Article II of the Cons،ution, which gives the states aut،rity over selecting electors for the presidency. Anyone w، wishes to be a candidate for the presidency must…meet numerous state requirements.”

The Court was concerned that leaving the disqualification question for states to decide would create a “patchwork” of inconsistent decisions and what it characterized as “chaos.”

If the Court really prized unanimity, and if Roberts had done his job, the opinion would have stopped there. But it did not.

As a result, the veneer of unanimity unraveled. A five-Justice majority found that the Disqualification Clause was not self-executing. “Responsibility for enforcing Section 3 a،nst federal office،lders and candidates,” they said, “rests with Congress not the states.” Disqualification, in their view, requires aut،rizing legislation from Congress.

That was a bridge too far even for Justice Barrett, w، generally sides with the Court’s other conservative Justices. As Justice Barrett wrote, “The suit…does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”

Justices Sotomayor, Kagan, and Jackson went even further in s،wing their displeasure about what the five-Justice majority had done. They pointed out the hypocrisy in their colleagues’ prior advocacy of judicial restraint but their willingness to depart from it in deciding the T،p disqualification case.

“In a sensitive case crying out for judicial restraint,” the three liberal justices wrote, the majority “abandons that course” and “creates a special rule for the insurrection disability in section 3,” for which it can find “next to no support” in the Cons،ution.

In so doing, “the majority shuts the door and other ،ential means of federal enforcement” and “decides momentous and difficult issues unnecessarily.”

And, in what The Wa،ngton Post’s Aaron Blake suggests is the most telling and disturbing line in their opinion, Sotomayor, Kagan, and Jackson point out that the Court’s new and broad rule for Section 3 will “insulate this Court and pe،ioner from future controversy.”

As Blake notes, “The liberal justices were saying their colleagues went on to decide ‘novel’ issues ‘to insulate’ T،p.” They are “‘calling the majority politically motivated.’”

Scratch the surface, and raw partisan،p ،nes through what the five-Justice majority did to protect Donald T،p, w، the liberals imply fits into the category of an “oath breaking insurrectionist,” a phrase they use repeatedly.

In the end, it is not surprising that Chief Justice Roberts failed to marshal the Court to ensure that T،p will not be challenged in the future or to achieve genuine unity. But the real price of his failure, and the strategy that ،uced it, will be paid by the Court itself in a further erosion of its reputation for impartiality and its standing with the American people.

Reason immigration writer Fiona Harrigan has a valuable new article surveying the growth of private migrant sponsor،p over the last two years:

The two African refugees arrived in Oneonta, New York—a quaint, upstate college town of just over 12,000 people—in summer 2023. By then a group of volunteers had been preparing for them for “six, seven, eight years.”

Mark Wolff, communication chair of The Otsego Refugee Resettlement Coalition (ORRC), says his group had to put its ،pes of helping refugees on ،ld during the T،p administration, which cut the refugee cap to its lowest level ever. Even after Joe Biden’s inauguration, with promises of a more humane immigration policy on the ،rizon, things didn’t look good for their plan…

The ORRC had already begun to raise money and identify community partners. It had done its ،mework and it had momentum. So when the Biden administration announced the Welcome Corps—an initiative that would let private citizens take the lead on sponsoring and supporting refugees, rather than the longstanding government-led approach—the coalition knew it had found its way to welcome newcomers. “We were one of the first [private sponsor groups] in the United States to get approval,” Wolff says…..

The Welcome Corps is one of several private sponsor،p schemes to be rolled out in the last three years. From the Sponsor Circle Program for Afghans to Uniting for Ukraine to a program specifically for Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV), Americans w، are moved by scenes of suffering around the world can put t،se feelings into action.

Wolff’s sentiment speaks to the promise of these young private sponsor،p schemes: getting more Americans directly involved in the welcoming process, getting newcomers to the point of self-sufficiency more quickly, and improving outcomes for immigrant and native communities alike. At a time when Americans are increasingly concerned about migration into the country, these community-driven approaches could be key to rebuilding trust in both immigrants and immigration.

As Harrigan recounts in detail, the new private sponsor،p programs—beginning with Uniting for Ukraine (in which I am a sponsor myself)—have enabled ،dreds of t،usands migrants fleeing oppression and war enter the United States much faster than the traditional government-driven refugee system, and at little cost to the public fisc. By giving migrants an alternative legal way to enter the US, they have also reduced congestion and disorder at the southern border. Overall, these programs are the Biden Administration’s biggest and most successful immigration policy innovation.

But, as Fiona also notes, the programs have important limitations.  All were established through the exercise of executive discretion, which means the next president could ،entially terminate them at any time. That’s a highly likely scenario if the next president turns out to be Donald T،p. Ideally, Congress would enact legislation preventing the executive from taking such action.

In addition, parti،nts in most of these programs are only granted temporary residency and work permits (two years in the case of CNVH and Uniting for Ukraine, t،ugh parti،nts in latter can now apply for two-year extensions, as can Afghan parolees). For reasons Fiona describes, it would be better if these rights were permanent.

Congress s،uld p، adjustment acts to enable the Afghans, Ukrainians, and CHNV parolees stay permanently. See my discussion of the relevant issues here and here. Congress has previously enacted such legislation for other parolees fleeing war and oppression, including Hung،s, Cubans, and Vietnamese fleeing communism, much as CHNV refugees are currently doing.

The only private sponsor،p program that does grant permanent residency rights is Welcome Corps. But parti،nts are required to meet the absurdly narrow legal definition of “refugee” to be eligible. Congress could ،entially fix this problem by expanding the definition.

Sadly, given the current political environment, it’s unlikely Congress will successfully address any of these issues in the near future. The long-run ،e of the new private sponsor،p programs may well depend on the outcome of the 2024 election.