The Supreme Court Just Erased Part of the Constitution - NYT Opinion

“the court went with arguably the broadest reasoning available: that Section 3 isn’t self-executing, and thus has no force or effect in the absence of congressional action. This argument is rooted in Section 5 of the amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

“But Section 5, on its face, does not give Congress exclusive power to enforce the amendment. As Justices Elena Kagan, Sotomayor and Ketanji Brown Jackson pointed out in their own separate concurring opinion, “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.” While Congress may pass legislation to help enforce the 14th Amendment, it is not required to do so, and the 14th Amendment still binds federal, state and local governments even if Congress refuses to act.”

“But now Section 3 is different from other sections of the amendment. It requires federal legislation to enforce its terms, at least as applied to candidates for federal office. Through inaction alone, Congress can effectively erase part of the 14th Amendment.”