SCOTUS Ducking the Trump Eligibility Question Now will Pressure the Court to Rule in his Favor Later

As I discussed on the blog last week and in a Verdict column earlier this week, the oral argument in Trump v. Anderson indicated that SCOTUS is likely to reverse the Colorado Supreme Court on the ground that a federal actor, not each of the fifty states, should make the key decisions regarding who becomes President. In my view, that would be seriously misguided because it's practically a non sequitur. For better or worse (okay, almost entirely for worse), the U.S. Constitution expressly grants the states the primary role in choosing the President--even to the point that states can, if they so choose in advance, select their Electors for the Electoral College by means other than an election. No one who has taken high school civics, much less any Justice of the Supreme Court, could reasonably conclude that states are somehow barred from deciding important questions regarding Presidential elections.

I'm not alone in that conclusion. In a thread on X, Prof Jed Shugerman reported that at the originalism conference in San Diego, the assembled (mostly conservative-leaning) scholars also thought that the seeming majority of Justices who were enamored with the argument that the Constitution bars states from deciding important questions regarding Presidential elections were barking up the wrong tree. Prof Shugerman also reported a prevailing view that whoever gets the assignment to write the opinion will realize the problems with this view and that, as we sometimes say "the opinion won't write."

I'm not sure I agree with that further conclusion. The Supreme Court produces numerous opinions that are illogical, inconsistent with other rulings it does not purport to overturn, and downright obtuse. Therefore, I would not rule out the possibility that the Court reverses the Colorado Supreme Court as having overstepped the role of the states in Presidential elections because . . . reasons.

If the Justices are inclined to look for a somewhat narrower version of the states-can't-do-it argument because they are embarrassed by the text of Article II, Section 1, they might turn to an argument that featured almost as prominently in Trump attorney Jonathan Mitchell's presentation as his bizarre contention that the President is not an "officer of the United States": the claim that disqualifying an insurrectionist from the ballot is inconsistent with the rule of U.S. Term Limits, Inc. v. Thornton that states may not add qualifications to the ones provided in the Constitution. Of course, the prohibition on insurrectionists holding office is already in the Constitution, but, Mitchell and amici argue, the possibility that Congress by a 2/3 vote of each house might vote lift the prohibition before Inauguration Day means that restricting ballot access is premature.

For reasons I've already spelled out in the blog post and Verdict column linked above and that Marty Lederman has addressed at length on Balkinization here and elsewhere, this seems plainly wrong. In addition to what I've said before, I'll note a further absurdity of this view. If it it's premature for Colorado to keep an insurrectionist candidate for President off the ballot because of the possibility that Congress might lift the ban before January 20, 2025, then it will also be premature for any court to declare an insurrectionist President ineligible after he's inaugurated--because at any moment before the court hands down its decision, Congress could by a 2/3 vote of each house lift the disqualification. (U.S. Term Limits says states can't add qualifications; Powell v. McCormack says Congress can't either; there's every reason to think the courts also can't add qualifications.)

Put differently, if the U.S. Term Limits argument is accepted, the only posture in which a court could ever hold that an insurrectionist is not a valid office holder would be in a case in which someone claims that an action the insurrectionist took--perhaps an insurrectionist President signing a bill into law that criminalizes certain conduct with which that someone is charged--was invalid because the insurrectionist didn't validly hold office. Yet from a planning perspective, that's just about the worst possible procedural posture in which the issue could arise.

The U.S. Term Limits argument thus highlights what's wrong with the Court's seeming intention to duck the question whether Trump is disqualified under Section 3 of the Fourteenth Amendment: ducking it now means that the issue will likely come back later at a point at which a decision against Trump would unleash chaos (from his supporters) or create a constitutional crisis when Trump refuses to accept the Court's judgment--all of which will place enormous pressure on the Court to rule in Trump's favor regardless of the merits of his contentions.