As I noted in my previous post, overwhelming majorities in both the U.S. House of Representatives and the Senate already have determined that Donald Trump’s conduct on January 6, 2021 “warrants … disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” What's more, the Article of Impeachment that those congressional majorities endorsed actually stated that because Trump “engaged in an insurrection” on January 6, 2021, he’s disqualified from holding any office under the United States pursuant to Section 3 of the Fourteenth Amendment (which the Article of Impeachment expressly cited). Unfortunately, 43 Republican Senators were unwilling to vote for such disqualification, and therefore the 57-vote majority was ten short of what was needed to impose such disqualification in the context of an impeachment proceeding.
It'll come as little surprise to most Balkinization readers that I agree that Trump’s conduct on January 6, 2021, as well as his other efforts to scuttle the 2020 election results (and other acts, as well), were high crimes or misdemeanors that warranted conviction and his disqualification from holding future federal office, whether or not his conduct amounted to engaging in an insurrection.
I imagine—or I hope, anyway—that a majority of the Justices of the Supreme Court likewise agree that Trump committed high crimes or misdemeanors on January 6 and that the Senate ought to have disqualified him from holding any further federal office. Even if that’s right, however, it does not mean that those same Justices will necessarily vote to affirm the Colorado Supreme Court’s determination that Trump is ineligible to serve as President under Section 3 of the Fourteenth Amendment. To the contrary, I share the view of most close Court observers that such a result is unlikely.
A combination of at least four things leads me to that conclusion:
First, there’s a small chance the Court might conclude that the case is moot or that the Court lacks statutory jurisdiction, even though the parties haven’t raised those jurisdictional issues. I discussed those issues in my previous post.Second, it’s possible that at least five Justices will have substantial doubts about the legal propriety of the Colorado Supreme Court’s decision, even if they agree that the congressional majorities were right to vote to disqualify Trump from holding future federal office. Even if a particular Justice concludes that most of Trump’s (and the Colorado Republican Party’s) many arguments are unavailing, Trump only needs to convince that Justice that one of those arguments is correct in order to preclude that Justice from voting to affirm.
For example, although I think Trump’s lead argument—that because the presidency is the only federal or state office he has held, Section 3 simply doesn’t apply to him even if he did engage in an insurrection—is implausible (the topic of my next post), I suppose some Justices might be more sympathetic to it. Other Justices might harbor doubts about whether Trump intended to incite a violent protest at the Capitol, or about whether, even if he did, incitement to violence, standing alone, constitutes “engaging in” an insurrection. And some Justices might think there’s merit to one or more of the “off-ramp” arguments that a state can’t exclude Trump’s name from a primary election ballot even if he is ineligible to be President under Section 3.
Third, some Justices might be uneasy about the propriety of the Supreme Court declaring a major party’s presidential candidate to be ineligible to serve where so many other actors in the constitutional system either have declined already to take steps sufficient to prevent him from taking office (including 43 Senators during the second impeachment proceedings, as well as the Department of Justice and the grand jury that have declined to invoke the insurrection statute (and its disqualification provision) in any case involving the January 6 attack), or that will have the power to do so in the near future (e.g., the general electorate; Trump-designated electors in December; and, if Trump secures more than 269 electoral votes, perhaps also the Joint Session of Congress that will convene to count electoral votes on January 6, 2025). Some Justices might also share Sam Issacharoff’s trepidations in a recent post at Just Security. If the evaluation of “whether disqualification should be imposed on any individual” are “[l]eft to local administration, with limited fact-finding by a single judge or state official,” he wrote, “the risk is that Trump’s exclusion in [one state] will beget a political tit-for-tat in which Biden is in turn excluded in a red state, or candidates of either party are pulled from the ballot in future.” “Down that path,” Sam worries, “lies nothing good for democracy.”
Some readers undoubtedly will think it’s imperative for the Court to resolve the question of Trump’s eligibility if that’s the better view of what the law requires—particularly if other actors are failing to do so. And I certainly agree that if a majority of Justices concludes that Trump is in fact disqualified and that the Colorado Supreme Court did not otherwise err in holding that his name should be removed from the Colorado ballot, that is what they ought to hold; I’m not suggesting that the Court disregard the law if it clearly demands affirmance. My point for present purposes is simply that it’s likely at least some of the Justices themselves will be troubled about the propriety or wisdom of the Court countermanding or pretermitting the judgment of so many other actors who have had, and who will have, the power to make a decision about the Fourteenth Amendment that would prevent Trump from serving.
Fourth, some Justices might worry that if the Court holds that Trump is ineligible to be President, it could be the very rare case in which important actors in the constitutional system refuse to accept the Court's decision as determinative.
Assume, for example, that the Court were to issue an opinion declaring that Donald Trump engaged in an insurrection and that the Fourteenth Amendment disqualifies him from being President again or from holding any other state or federal office. Such a declaration wouldn’t be binding on any of the other actors who have a role in determining whether Trump takes the oath of office on January 20, 2025—none of whom except Trump himself are parties to the Colorado case—and it's an unfortunate reality of our current political situation that some of them might disregard it.
For starters, I fear that vast numbers of Republican Party officials and voters would be incredulous (at best) if the Court were to issue such a ruling. It’s hard to imagine Trump himself would step aside, and election officials in many or most states might not exclude his name from their presidential primary ballots. (Even if the Court holds that it would be permissible for Colorado to exclude Trump’s name, the Fourteenth Amendment surely doesn’t require such a ballot exclusion; indeed, states often have included on their ballots the names of individuals who are incontrovertibly ineligible to hold office. See Part II of Derek Muller’s amicus brlef.) And whether or not Trump’s name appears on a particular state's primary ballot, it’s entirely possible that a majority of the Republican primary voters in most or all states will vote for him. Assuming they do so, the Republican Party would almost surely nominate him for President at its July convention. At that point, most states will probably continue to include Trump’s name on their general election ballots (especially if their state laws don’t authorize any exclusion, which might be true in the vast majority of states). Perhaps one or more of the possible outcome-determinative “swing” states (e.g., Arizona, Georgia, Michigan, Nevada, New Hampshire, North Carolina, Pennsylvania, Wisconsin) would omit his name, although even that is highly speculative, as it would depend upon questions of state-law authority and who controls the executive and judicial branches of the particular state.
Then, after the November election, there’d be at least two possible scenarios, depending on whether Trump finishes first among voters in states with more than 269 electoral votes.
In the first scenario, Trump prevails in states with 270 or more electoral votes. If he did, all or almost all electors “pledged” to him would probably cast their votes for him in December, no matter what the Court has said about his eligibility. Then, depending upon many variables, including the composition of the House and Senate in the next Congress, one or both chambers sitting at the Joint Session of Congress on January 6, 2025 might refuse to count such electoral votes for Trump because of the Court’s holding, in which case there could well be chaos or, at best, great uncertainty about the process for determining who would serve as President. Or, perhaps both Houses would count the Trump electors’ votes and declare Trump to be the President-elect—in which case presumably he’d take office on January 20, in defiance of the Court’s ruling that he’s ineligible to do so. [UPDATE: It's easy to foresee that persons injured by actions taken by Trump as President--say, imposing IEEPA sanctions--would then sue to enjoin those actions going forward on the ground that Trump is holding office in violation of the Constitution. Such lawsuits might well end up on the Court's doorstep, where the Court could again rule that Trump is disqualified to hold office, and enjoin his conduct accordingly. I wouldn't venture to guess what would happen next, except to suspect that an interbranch stand-off could be in the works. Not a prospect the Court would relish, obviously.]
In the alternative scenario, Trump would receive fewer than 270 electoral votes. If both Houses of the incoming Congress have Democratic majorities, they’d then declare Joe Biden to be the President-elect. Even in that case, a disconcertingly large number of Americans probably would, justifiably or not, consider that determination to be fraudulent because they’ll insist that the Court’s declaration affected enough votes to have swung the election. And that problem would be even more fraught if one or both Houses of Congress are controlled by Republicans because, in that case, majorities of one or both chambers might refuse to count Biden electors’ votes for the same reason (namely, the Court’s allegedly improper interference)—and the identity of the next President would then be acrimoniously contested.
Each of these unwelcome possibilities would, at a minimum, pose a serious threat to the Court’s authority, and most of them would portend some sort of crisis in early 2025 relating to presidential succession.
Are such dire results inevitable if the Court declares Trump ineligible to serve as President? No, they’re not. And I certainly don’t mean to suggest that such defiance of the Court's determination would be defensible. Even so, I have to imagine that many of the Justices will be concerned about the possibility of such reactions. Again, I should stress that if the Court concludes that the Colorado decision was lawful, it should say so. My only point here is to observe that, because of the possible implications of such a holding, some or all of the Justices will be inclined to take a very hard look at alternative dispositions, as well.
For all these reasons, I agree with many other Court observers that a straight-up affirmance of the Colorado Supreme Court is an unlikely outcome.
If I'm right about that, then there are two other possible results: The Court might rule that Trump is constitutionally eligible to serve as President again, or it might use a so-called “off-ramp” to reverse the judgment of the Colorado Supreme Court without opining on Trump’s eligibility.
The problem the Justices will face, however, is that each of these other outcomes would raise fairly serious problems of its own.
The most significant obstacle to a “Trump is eligible to be President” result is that most of the arguments Trump has offered in favor of that result are simply implausible, and those that might have some merit would require the Court to opine on the events of January 6, 2021 (including about Trump’s intent on that day) in ways I presume most of the Justices would be understandably reluctant to do. I’ll examine these arguments in my next two posts.
Yet the “off-ramp” alternative isn’t a panacea, either. For reasons I’ll elaborate in later posts, almost all of the non-merits-based alternative grounds for reversal also are extremely weak (or have very problematic implications) and, therefore, the Court ought to be very wary of relying upon them. (In my final post, I’ll examine whether one of those “off-ramp” arguments that’s received relatively little attention—involving the First Amendment rights of Trump supporters—might be more feasible than the others, at least at the stage of a primary presidential election.)
That said, I suspect that most of the Justices will be eager to find a principled way to reverse the Colorado Supreme Court’s decision on removing Trump’s name from the primary ballot without determining whether he may lawfully hold office.
Many commentators, and some amici, have urged the Court not to resort to any “off-ramp” holding because a failure to announce a decision on Trump’s eligibility would leave a constitutional cloud looming over the election and could lead to a crisis next January 6th, when the Joint Session of Congress meets to count electors’ votes. Most significantly, in part B of their amicus brief, Ned Foley, Ben Ginsberg and Rick Hasen insist that the Court’s “intervention on the merits is imperative now” because “delay risks catastrophe” and “[f]ailure to resolve the merits now would place the Nation in great peril.” According to Foley, Ginsberg and Hasen, “requiring Congress to take up the issue in an inherently political process, on the fourth anniversary of the U.S. Capitol riot, would be a tailor-made moment for chaos and instability. The pressure on Congress from all sides would be enormous, as would be the temptation to resolve the disqualification question not as a matter of the legal or factual merit, but as an exercise of political power.” Only a merits decision by the Court, they argue, “stands between the potentially disastrous turmoil that would result and a comparatively peaceful election administered consistent with the Constitution and the rule of law.” The Court therefore “should not let this opportunity to stave off political instability pass.”
These amici are wise, measured and experienced observers of U.S. elections. The Court therefore should take their sincere concerns very seriously. With the greatest respect for the amici, however, I don’t think the threat would be as dire as they fear if the Supreme Court were to “kick the can” on the substantive question of Trump's eligibility to other actors, including Congress. For one thing, if President Biden were to secure more than 269 electoral votes, the question of Trump’s eligibility would become a dead letter. But even if Trump were to prevail in enough states to reach a majority of electoral votes—and even if 270 or more of his pledged electors cast their votes for him—I think the odds of a constitutional “catastrophe” next January are considerably less than Foley, Ginsberg and Hasen fear.
I'm largely in agreement with those amici on several of their points. I agree with them, for instance, that “[i]f Mr. Trump ostensibly wins the Electoral College, it is a certainty that some Members of Congress will invoke Section 3 in an effort to prevent him from returning to the presidency.” I also agree with them that the better reading of the Electoral Count Act is that it would be lawful for members of Congress to an elector’s vote for an ineligible candidate on the basis that it was “not regularly given,” 3 U.S.C. § 15(d)(2)(B)(ii)(II), although unfortunately that is an unresolved question. And I further agree that if a majority of either the Senate or the House were to refuse to count Trump’s electoral votes, it could be “dangerously unclear who, following a disqualification of Mr. Trump, should serve as President” (see pp. 15-17 of the amicus brief for details on the statutory and constitutional uncertainties) and that such a situation could present a “risk of violence and instability.”
Where I part ways with Foley, Ginsburg and Hasen is that I find it hard to imagine, if the Court has not opined on Trump’s eligibility, that a majority of either chamber of Congress will choose to disregard electoral votes for Trump if he secures more than 269 in the general election (and in the electoral “college” vote).
Of course, I might well be wrong about that—I’m hardly an expert in such matters. And if some Justices agree with the amici that there’s a significant risk of chaos come January 2025, that would (and should) make them more amenable to ruling on the merits of whether the Constitution disqualifies Trump from serving as President. I doubt, however, that most of the Justices will share that view. Indeed, they'll likely have greater concerns about the possible fallout if the Court were to hold that Trump is disqualified. For that and the other reasons I describe above, I think the Court will be inclined to reverse the judgment of the Colorado Supreme Court without opining on whether Trump may lawfully serve as President, if a majority of the Justices concludes that such a disposition is legally available. In a coming post, I'll explain why that solution might be more difficult to craft than it may appear at first.
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