When it comes to deciding whether former President Donald Trump should be removed from the ballot in Colorado, the easiest path the U.S. Supreme Court could take now could end up causing the most chaos early next year.
That's the dire warning from a group of legal experts who fear the court could attack the biggest question in the blockbuster case challenging Trump's eligibility for a second term — whether the former president participated in an insurrection — and rule that It is up to Congress, not states, to enforce the “prohibition of insurrection” included in the 14th Amendment.
In interviews and court documents, legal experts have used phrases such as “catastrophic constitutional crisis,” “political instability” and “terribly ugly” to warn the justices against intervening in a dispute they predict could “come back with a vengeance” next year if Trump win the election.
“This is a volatile thing,” said Gerard Magliocca, a law professor at Indiana University and one of the country’s leading experts on prohibition.
Based on questions asked during more than two hours of oral arguments Thursday, a broad majority appeared to sympathize with Trump's claim that Colorado did not have the authority to remove him from the ballot. But that wouldn't answer the question of whether Congress might decide he's ineligible to serve.
If the justices rule that states cannot enforce the ban — and if Trump wins the general election in November — it could trigger a fight over whether Congress should enforce it. Democratic lawmakers, the theory goes, would challenge Trump's eligibility when the electoral votes are counted in January of next year.
“If the Court just says states can’t impose (the ban) against presidential candidates, that’s not the same as saying Trump is eligible to serve,” said Magliocca, who supported Colorado electors who challenged Trump. “The court would not take any position on this issue. And that means if Trump wins, people would feel free to go to Congress on January 6, 2025 and ask them to declare him ineligible.”
The election case is separate from Trump's claim of immunity from criminal prosecution, which reached the Supreme Court on Monday. In that case, Trump asked the high court to block a decision by the Washington DC Circuit that rejected his request for immunity from electoral subversion charges brought by special prosecutor Jack Smith.
In election litigation, Trump is appealing a Colorado Supreme Court ruling in December that he incited the attack on the U.S. Capitol while electoral votes were being counted in 2021.
Arguments at the U.S. Supreme Court last week focused less on the question of whether there was an insurrection and more on technical questions about whether states can enforce the ban. A decision can come at any time.
Many experts speculate that Chief Justice John Roberts may be eager to handle the election case quickly and with something close to unanimity. If he seeks a decision that could win the support of conservative and liberal justices, he will likely avoid the discussion of whether Trump participated in an insurrection.
Before discussions took place, some scholars sounded the alarm about a decision that does not resolve fundamental questions about Trump's role on January 6, 2021. A paper presented last month by three prominent election law experts warned of a worst-case scenario that, according to them, “it would fan the flames of public conflict”.
“Even worse for the nation's political stability is the prospect that Congress might actually vote to disqualify him after he apparently won the Electoral College elections,” the lawyers wrote. “Neither Mr. Trump nor his supporters, whose votes will have effectively been discarded as invalid, are likely to accept such a statement without doing anything.”
And, they wrote, the rules for what happens next if Congress finds Trump ineligible are “dangerously unclear.”
How to avoid the electoral chaos of January 6th
The court could avoid uncertainty by clearly holding, for example, that Trump was not involved in an insurrection or that the 14th Amendment's ban does not apply to former presidents. Trump argued that when the insurrection ban referred to someone serving as an “officer of the United States,” that language meant federal employees appointed by the president, not the presidency itself.
It could also include one of Trump's earlier arguments that his words at a rally outside the White House before the attack on the Capitol were protected by the First Amendment.
“Either of these decisions would not leave the question open to Congress,” said Edward Foley, director of the election law program at Ohio State University and one of the authors of the brief presented to the Supreme Court last month.
A political fight over eligibility would likely be limited to Congress, but it could also drag the Supreme Court back. “Depending on how terribly ugly the situation gets, the court may feel compelled to get involved,” Foley said.
The question of future consequences came up during last week's oral arguments, including during a brief exchange between Judge Ketanji Brown Jackson, appointed by President Joe Biden, and Jason Murray, the lawyer representing electors challenging Trump.
“If we think that states cannot enforce this provision for whatever reason in this context, in the presidential context, what happens next in that case?” Jackson asked. “It's done?”.
Murray said the current case would be closed, but warned the underlying problem could “come back with a vengeance.” Ultimately, Murray said, members of Congress “may have to make the decision, after a presidential election, if President Trump wins, as to whether or not he will be disqualified from office.”
If Trump wins in November, it's possible that some Democrats will try to reject votes cast in Trump's favor, said Derek Muller, a law professor at Notre Dame who has followed the case closely.
Politically, Democrats would have to win a majority in both chambers to have a chance of success. And if they were successful, the election would be sent to the Chamber of Deputies to choose the next president – an outcome, Muller said, that “no one wants to see.”
*With information from Katelyn Polantz, from CNN.
Source: CNN Brasil
Bruce Belcher is a seasoned author with over 5 years of experience in world news. He writes for online news websites and provides in-depth analysis on the world stock market. Bruce is known for his insightful perspectives and commitment to keeping the public informed.
