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Wednesday, March 16, 2022

The District Court Opinion in the Cawthorn Case

We now have a written opinion from the District Court. It's a slapdash effort. I'll confine my discussion to the Court's Amnesty Act analysis, and leave others to discuss issues such as abstention.

The fatal flaw in the opinion is that the Court assumes that Section Three of the Fourteenth Amendment gives Congress the power to provide prospective disqualification waivers. There is no analysis of that premise at all. This is a shocking omission in addressing an important claim of first impression. And since the District Court assumes the constitutionality of prospective amnesty, there is no need for the Court to grapple with the canon of constitutional avoidance, which counsels in favor of reading the Amnesty Act more narrowly. Life is easy when counterarguments can be ignored.

The opinion's statutory reading is no better. The Court argues that the Amnesty Act's use of the terms "imposed" and "whomsoever" to describe those receiving a waiver (except for those excluded such as Jefferson Davis) is unambiguous and applies to all other people; living, dead, and unborn. This is wrong. Imposed could mean "already imposed."  If the language is read to mean "already imposed," then that limits the term "whomsoever"  to ex-Confederates. Of course, the Court's assertion that this is a plain meaning case allows the opinion to ignore the legislative history of the Act, which provides no support for a prospective interpretation. (It's worth adding that nobody thought that a prospective reading was the meaning, let alone the plain meaning, of the Amnesty Act until 2022.)    

Congress's construction of Section Three confirms that a prospective reading of the Act is wrong. The House of Representatives applied Section Three to Representative Berger after World War I and stated: “Congress has no power whatever to repeal a provision of the Constitution by a mere statute” and “would not have the power to remove any future disabilities.” The Court attempts to distinguish this precedent by arguing that Berger did not rely on the 1872 Amnesty Act (he instead cited the 1898 amnesty that removed the disabilities that remained on the ex-Confederates). But the House's analysis applied more broadly. Berger probably did not cite the 1872 Act because he did not think that provided a plausible basis for prospective amnesty. He was right. 

If the Fourth Circuit chooses to reach the merits in the pending appeal of the District Court's order, then this erroneous decision will be reversed.

UPDATE: I'll add that no scholar that I'm aware of is defending the District Court's ruling as correct, which tells you something.

Posted by Gerard Magliocca on March 16, 2022 at 09:15 AM | Permalink


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