Monday, February 08, 2021

Trump v. Sasse

Gerard N. Magliocca

This could be the caption of a Supreme Court case decided in 2023 or 2024.

Even if Congress takes no action under Section Three of the Fourteenth Amendment, the issue of the former President's possible ineligibility under that provision will be raised if he runs again. Anyone else seeking the GOP nomination in 2024 could challenge Donald Trump's eligibility for the primary ballot, citing Section Three. The ensuing litigation would probably reach the Supreme Court from some state and would need to be decided before the party delegates start being allocated, lest there be chaos. While the Justices probably dread the prospect of such a case during a campaign, they may have no way out.

This is why it's so important for Congress to set up a fair process to adjudicate Section Three eligibility issues well in advance of the next election. And this is true even if Trump decides not to run. If Ted Cruz or Josh Hawley run instead, people will also challenge their eligibility under Section Three. (I would say those challenges would be without merit, but we will need a prompt resolution either way.) 


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