5 ways the Supreme Court may try to defuse its newest trump bomb

‘As the justices confront a historic case with enormous political stakes, they might seek a narrow way out….’ (POLITICO)

 

Here are the suggestions, whose merits are discussed in the article:

— POTUS isn’t an ‘officer’: The 14th Amendment’s “insurrection clause” lists various positions that cannot be held by anyone who “engaged in insurrection” after taking an oath to “support the Constitution.” Those positions include senators, representatives, and presidential and vice-presidential electors. Conspicuously, the clause does not explicitly list the presidency itself as a covered position — but it does contain a catch-all provision barring insurrectionists from holding “any office, civil or military, under the United States.” …

— Maybe there ought to be a law, but there isn’t: Another major ambiguity in the insurrection clause is that the text is silent about who decides whether a person is an insurrectionist. (It does say Congress can restore an individual’s eligibility by a two-thirds vote of both chambers, but not who decides someone is ineligible in the first place.) In legal terms, the question is whether the disqualification provision is “self-executing” or whether Congress has to pass a law for it to apply…

— This isn’t fair to trump: While there are several variations of this argument, the basic thrust is that the trial that led the Colorado Supreme Court to rule that trump should be kicked off the ballot there didn’t do enough to safeguard trump’s rights and allow him to contest the allegations that he led an insurrection. An aggressive version of this claim asserts that the only way to knock trump out of the election would be for him to be convicted of the specific federal crime of leading a “rebellion or insurrection.” While trump is facing four federal felony counts related to his efforts to overturn the 2020 election results, none is that particular charge, even though the House Jan. 6 committee urged the Justice Department to charge him with it. (And, of course, he hasn’t been convicted.) A more modest iteration of the argument was put forward by one of the Colorado Supreme Court’s dissenting justices, who derided as “substandard” the procedures used for trump’s trial in Colorado — which was a civil suit proceeding under the state’s election law, not a criminal trial…

— It’s too soon to declare trump ineligible: The justices might conclude that it’s simply too early to weigh in on trump’s eligibility. Perhaps the 14th Amendment’s bar kicks in only during the general election that picks the office-holder, not during primaries that determine party nominations. Or perhaps the amendment merely bars insurrectionists from taking office and cannot actually be used to prevent them from running for office…

— The case is too hot to handle: When thorny, politically charged issues arise in court, judges sometimes simply declare the cases too political for the legal system to resolve — effectively sending them back to other branches of government. The justices could invoke this principle, known as the “political question doctrine,” to bow out of the issue of trump’s disqualification, but doing so would likely leave the Colorado Supreme Court decision in place…