SCOTUS may use these 5 points to 'wriggle out of a definitive ruling' in Trump disqualification case: report

08 January 2024

As the US Supreme Court prepares to take on the Colorado Supreme Court's decision to disqualify Donald Trump from the 2024 ballot under Section 3 of the 14th Amendment, Politico predicts in a Monday, January 8 report, five arguments the conservative-leaning court might use "to wriggle out of a definitive ruling that either kicks Trump off the ballot or hands him an unqualified legal and public-relations victory."

The news outlet also offers the upsides and pitfalls of each point.

Argument #1: "POTUS isn't an officer."

This stance refers to the 14th Amendment's “insurrection clause," which "lists various positions that cannot be held by anyone who 'engaged in insurrection' after taking an oath to 'support the Constitution.' Those positions include senators, representatives, and presidential and vice-presidential electors."

POLL: Should Trump be allowed to hold office again?

The upside to this, Politico notes, is "It’s arguably the cleanest of the Supreme Court’s options. A narrow, technical reading of the clause could get support from both Republican and Democratic appointees, or even potentially unanimous backing. And it would likely be a complete resolution to the 14th Amendment issue because it would preclude efforts to knock Trump off the ballot in other states, and it would shut down post-election challenges to Trump’s eligibility to serve if he won in November."

The pitfall — "A ruling that turns on the meaning of 'office' or 'officer' would be hyper-technical and hard for average voters to understand. Moreover, scholarly consensus seems to favor the president being covered by the amendment, as does common sense. And a decision declaring presidents not to be federal officers could have unintended legal consequences, even for pending civil lawsuits against Trump."

Argument #2: "Maybe there ought to be a law, but there isn’t"

The upside, according to the news outlet, is "A ruling along these lines might close the door on post-election challenges to Trump’s eligibility, and it would leave Congress space to clarify the issue in the future."

The pitfall could be that "Punting the question to Congress is more complicated than it appears at first glance. Even if the insurrection clause isn’t self-executing, it’s unclear whether Congress is truly the only entity empowered to enforce it. Do states, for example, have authority to pass their own laws to enforce the provision? What if their court systems find the anti-insurrection language enforceable under existing state laws on ballot qualifications? After all, that’s essentially what the Colorado Supreme Court concluded in the Trump case."

Argument #3: This isn’t fair to Trump

Politico notes the upside may be, "Even some Americans hostile to Trump may be sympathetic to the idea that he’s entitled to a criminal trial or some similar process before being blocked from the ballot."

However, the pitfall here is that "It seems clear from history that the drafters and ratifiers of the 14th Amendment — which was adopted in the wake of the Civil War — were trying to block all rebels from federal office, even those who hadn’t been convicted of crimes or had been pardoned."

Argument #4: It’s too soon to declare Trump ineligible

The news outlet points out the upside is, "A ruling along these lines would adhere to Chief Justice John Roberts’ oft-stated desire to have the court narrowly interpret the issues before it and not reach out to resolve future disputes until it must. It would take the spotlight off the court — at least for now."

The pitfall, perhaps, could be that "it would be an obvious punt, since all the issues seem likely to return before or after the general election, with Trump dominating in the polls and widely expected to win the nomination. It would create a state-by-state patchwork by allowing some states, like Colorado and Maine, to kick Trump off their primary ballots while other states keep him on."

Argument #5: The case is too hot to handle

The upside here, is it "would get the justices entirely out of the heated political fight, and it would avoid contributing to the view that the Supreme Court is hopelessly politically polarized."

However, Politico emphasizes, "The doctrine has been in some decline in recent years, with critics arguing that it simply allows judges to dodge tough decisions in controversial cases."

The news outlet emphasizes, "Directly answering either 'yes' or 'no' would spark white-hot political fallout for an already embattled court. But in a case packed with technical and untested legal issues, there are still ways the justices could try to wriggle out of a definitive ruling that either kicks Trump off the ballot or hands him an unqualified legal and public-relations victory."

Politico's full report is available at this link.

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