SCOTUS Builds an Off-Ramp
A reaction to the live arguments in Trump v. Anderson.
Good evening to all my faithful habibis. As promised, I am going to give you a recap of the Supreme Court’s oral arguments in Trump v. Anderson, which will determine if Donald Trump is disqualified from running for office under the 14th Amendment. Or will it?
First off, if you want to read the oral argument, there is a transcript here. Second, I have been informed by reliable sources that sometimes the Jackals on legal stuff can be overly long. I will keep this one short, but it should be noted: Every time I say a Jackal will be short, the reading time usually clocks in at around 10 minutes. ONLY GOD CAN JUDGE ME.
So, SCOTUS is going to keep Trump on the ballot?
I should do a little preface/preamble/teaser thing right here: Take the conclusions drawn from oral argument with a grain of salt. Yes, the Justices all sounded skeptical of Colorado’s case, but writing something down and saying it out loud are two different things. And judges at every level often use oral arguments to poke holes in theories that they actually agree with as a whole. I would wait for the final decision before you start counting your money.
That said, it did sound like there was skepticism from everyone about Colorado’s case. You’ll recall that I previously said there were three escape hatches for the Justices, and they might take any one of them:
Trump, as President, is not an officer of the United States.
Section 3 is not self-executing.
January 6th was not an insurrection, and thus Section 3 does not apply.
LoL and behold, the Justices sounded like they were going to create their own escape hatch. Score one for my prediction skills.
When the oral argument started, you could actually get a sense of the strength of Colorado’s case. Early on, both Justice John Roberts and Justice Clarence Thomas were poking holes in Trump’s defense, and sounded skeptical that Section 3 wasn’t self-executing.
So, things started out poorly, and it sounded like one escape hatch was slowly being closed. Then, Justice Sam Alito came to the rescue and cracked it open. He proposed an off-ramp that SCOTUS could take: Colorado, which is a STATE, cannot bar a FEDERAL officer from a ballot. So, Trump would have to appear on the ballot (should he win Colorado’s Republican primary). It is sort of a nod to the idea that Section 3 is not self-executing, but not perfectly. It ultimately says that Congress (in all its Federalness) should make the determinations about Federal candidates (in all their Federalness).
After a while, every other Justice seemed to put their foot on the gas as the car headed towards Alito’s off-ramp. Justice Elena Kagan took a turn driving, and even Sonia Sotomayor shifted the gears a little. In a small victory for Josh Blackman and Seth Barrett Tillman, KBJ seemed open to their theory that the President is not an officer of the United States, but after she floated several trial balloons related to that argument and no one took the bait. Overall, by the time the argument was done, it sounded like all the Justices had settled on the off-ramp option, with only Sotomayor wavering.
So, Trump won?
This is where things get messy. If SCOTUS issues a decision that says Colorado cannot bar a Federal officer from appearing on the ballot, then they are actually just punting on the disqualification issue. They are more or less saying that they aren’t sure if Section 3 is self-executing, but they know that a State cannot “self-execute” it.
This sets us up for disaster down the road, but SCOTUS likes to avoid sticky situations and leave them for Congress to sort out. Jeannie Suk Gersen makes this point:
The argument is tempting because it resolves this case while not resolving the hardest questions. But that temptation also holds the greatest risks. It all but guarantees that, if Trump wins, members of Congress, a sizable portion of the public, and a number of states will contest his ability to hold office. There is little chance of his getting a two-thirds vote of each house of Congress saying that he can hold office—or of his and his supporters coming close to conceding that he even needs Congress’s approval to hold the Presidency. Some states may attempt to refuse to certify electoral votes for Trump on the grounds that he is disqualified under Section 3. Some members of Congress may refuse to count electoral votes for him on the same grounds, on January 6, 2025. If we thought that January 6, 2021, was an insurrection, we might see something even closer to how the Framers conceived of the term. It’s unclear what the Chief Justice would be required to do if Trump, Trump’s running mate, and Biden all claimed to be the proper person to be sworn in as President on January 20, 2025.1
There were a lot of conservative commentators mocking the people advocating for the disqualification arguments yesterday, with Will Baude and Michael Stokes Paulsen being mentioned repeatedly. But those commentators missed a glaring issue in the oral argument: If the argument for Trump’s disqualification is so weak, so easily rebutted, why is SCOTUS (apparently) deciding to avoid answering it at all? If this case is so weak, why is SCOTUS building an off-ramp?
You’d have to think that if the Justices all thought it was clear that Trump was not disqualified under Section 3, they’d come out and say it. Instead, it seems like they are ultimately going to say, “We make no determinations as to Donald Trump’s disqualification, but any action enforcing such a disability would have to be taken by Congress.”2
If SCOTUS takes this route, there is a plausible scenario where Trump becomes disqualified later on and Baude and Paulsen get to say they were right.
I personally think it would be better if SCOTUS just gave us a definitive answer right now, but they might not know what to say. It is hard to argue that the President is not an officer of the United States; it is hard to argue that Trump did not engage in insurrection; and it is hard to say Section 3 isn’t self-executing, ever, without running into trouble.
Maybe they are avoiding trouble right now, but in the long-term things look iffy.
Should-Read:
I have not had the time to get through the Special Cousel’s report in Joe Biden’s mishandling of classified information, but Marcy Wheeler has a good piece here on the clear bias in the report.
That’s it from me this week. The Jackal is off next Friday, thanks to Ash Wednesday and our three-day weekend. But I’m sure I’ll be back with something to say in the interim.
Have a great week.
(Hey look! It’s a Jackal that isn’t super long!)
Fun fact: Baude and Paulsen have discussed this very scenario on the Amarica’s Constitution podcast.
Justice Kavanaugh suggested that a criminal conviction of insurrection might also suffice, all but daring Jack Smith to issue a superseding indictment.