When it comes to deciding whether former President Donald Trump should be removed from Colorado’s ballot, the easiest path the Supreme Court could take now could lead to the most chaos early next year.
It’s a sobering warning from a group of legal experts who fear the court could raise questions about the biggest question in the blockbuster case challenging Trump’s eligibility for a second term — whether the former president participated in the insurrection. -And it is up to Congress to decide. No states to enforce the “insurrection prohibition” contained in the 14th Amendment.
In interviews and court documents, legal scholars have used phrases such as “catastrophic constitutional crisis,” “political instability” and “horribly ugly” to caution judges against taking the easy way out of a controversy about to be He predicts it “could come back with a vengeance” next year if Trump wins the election.
“It’s a volatile thing,” said Gerard Magliocca, a law professor at Indiana University and one of the nation’s leading experts on sanctions.
Based on his questions during more than two hours of oral argument Thursday, a broad majority appeared sympathetic to Trump’s claim that Colorado did not have the authority to remove him.
But that would not answer the question whether Congress could decide he is ineligible to serve.
If judges decide states can’t enforce the ban — and if Trump wins the general election in November — it could lead to a fight over whether Congress should enact it. The theory is that Democratic lawmakers will challenge Trump’s eligibility when the electoral votes are counted next January.
Magliocca, who supported Colorado’s electors challenging Trump, said, “If the court simply says states can’t impose (restrictions) against presidential candidates, that’s not the same as saying Trump can serve Are capable of doing.” “The court will not entertain any consideration on that question. And that means if Trump wins, people will feel free to go to Congress on January 6, 2025 and ask them to disqualify him.
The ballot issue is separate from Trump’s claim for immunity from criminal prosecution, which reached the Supreme Court on Monday. Trump asked the high court in that case to block a D.C. Circuit decision that had rejected his claim for immunity from election sabotage charges brought by special counsel Jack Smith.
In the ballot litigation, Trump is appealing a Colorado Supreme Court ruling in December that he incited the attack on the US Capitol as electoral votes were being counted in 2021.
Arguments at the US Supreme Court last week focused less on whether there was an insurrection and more on technical questions about whether states can enforce the restrictions. The decision can come any time.
Many experts speculate that Chief Justice John Roberts may be eager to dispose of the ballot case quickly and nearly unanimously. If he is seeking a verdict that can garner support from conservative and liberal judges, he will likely avoid discussing whether Trump participated in the insurrection.
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Before the debate took place, some scholars were raising concerns about the decision not addressing fundamental questions about Trump’s role on January 6. 2021. A brief filed last month by three leading election law experts warned of a worst-case scenario, saying it would “fan the flames of public conflict.”
“Worse still for the country’s political stability is the possibility that Congress might actually vote in favor of his disqualification, given that he clearly won the election in the Electoral College,” the lawyers wrote. “Neither Mr. Trump nor his supporters, whose votes would effectively have been rejected as void, are likely to accept such an announcement quietly.”
And, he wrote, the rules for what happens next if Congress finds Trump unfit are “dangerously vague.”
For example, the Court could avoid uncertainty by explicitly holding that Trump was not involved in an insurrection or that the 14th Amendment’s prohibition does not apply to former presidents. Trump argued that when the embezzlement ban mentioned someone serving as an “officer of the United States”, that language meant federal officials appointed by the president, not the presidency.
It could also include one of Trump’s earlier arguments that his words at a rally outside the White House before the Capitol attack were protected by the First Amendment.
“None of those … decisions will leave this issue open to Congress,” said Edward Foley, director of the election law program at Ohio State University and one of the authors of the brief filed with the Supreme Court last month.
The political fight over eligibility will likely be limited to Congress, but it could also land the Supreme Court in trouble.
“Depending on how dire the situation may be, the court may be forced to get involved,” Foley said.
The issue of future results arose during oral arguments last week, which also included a brief exchange between Justice Ketanji Brown Jackson, President Joe Biden’s nominee, and Jason Murray, the lawyer representing the electors challenging Trump.
“If we think that the States cannot invoke this provision for any reason, in this context, in the President’s context, what should happen next in this case?” Jackson asked. “is it done?”
Murray said the current issue would go away but warned that the underlying issue “could come back with a vengeance.”
Ultimately, Murray said, members of Congress “may have to decide after the presidential election whether to disqualify President Trump from office if he wins.”
Derek Mueller, a law professor at Notre Dame who has followed the case closely, said that if Trump wins in November, it is possible that some Democrats will try to reject votes cast for Trump. Politically, Democrats will have to win majorities in both houses to have a chance at success. And if they were successful, the election would be sent to the House of Representatives to choose the next president — an outcome, Mueller said, that “no one wants to see.”