Yet the Court continues on to resolve questions not before us. In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed. Congress, the majority says, must enact legisla- tion under Section 5 prescribing the procedures to “ ‘ “ascer- tain[ ] what particular individuals” ’ ” should be disqualified. These musings are as inadequately supported as they are gratuitous.
To start, nothing in Section 3’s text supports the major- ity’s view of how federal disqualification efforts must operate. Section 3 states simply that “[n]o person shall” hold certain positions and offices if they are oathbreaking insurrectionists. Nothing in that unequivocal bar suggests that implementing legislation enacted under Section 5 is “critical” (or, for that matter, what that word means in this context). In fact, the text cuts the opposite way. Section 3 provides that when an oathbreaking insurrectionist is disqualified, “Congress may by a vote of two-thirds of each House, remove such disability.” It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation. Even petitioner’s lawyer acknowledged the “tension” in Section 3 that the majority’s view creates.
Similarly, nothing else in the rest of the Fourteenth Amendment supports the majority’s view. Section 5 gives Congress the “power to enforce [the Amendment] by appropriate legislation.” Remedial legislation of any kind, however, is not required. All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) “are self-executing,” meaning that they do not depend on legislation. City of Boerne v. Flores, 521 U. S. 507, 524 (1997); see Civil Rights Cases, 109 U. S. 3, 20 (1883). Similarly, other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation. ... Nor does the majority suggest otherwise. It simply creates a special rule for the insurrection disability in Section 3.
