The Supreme Court’s decision in Trump v. Anderson, the Colorado ballot case, transforms the Constitution’s self-defense mechanism into a self-destruct countdown. The authors of Section 3 of the Fourteenth Amendment sought to prevent future crises, like the Civil War they had just endured, by excluding oathbreaking insurrectionists from office. But the Supreme Court’s slapdash opinion could cause a crisis if Donald Trump is elected in November. Political leaders on both sides of the aisle need to start thinking now about how to clean up the Court’s mess.
One goal of both parties to the Section 3 lawsuit was to obtain a decision on Trump’s eligibility before the election. As Justice Louis Brandeis once wrote, it is usually more important that the “law be settled than it be settled right.” Disqualifying Trump from office was the way to settle the case right. Resolving Trump’s eligibility one way or the other was the way to settle the case. Unfortunately, the Court did neither. Instead, the opinion said that Congress, not a state government, must act to disqualify him from federal office. The Court’s failure to tackle the insurrection issue head-on means that, even if Trump wins and is inaugurated, millions of Americans in good faith could (and probably will) still believe he is not eligible to serve another term. Though this alone may be more of a nuisance than a problem, this belief that Trump is not the lawful president could cause considerable mischief in the coming years.
The most acute danger from the Court’s indecision will come between Election Day and Inauguration Day. Suppose that Trump wins and the Democrats win control of Congress. Many will argue that the Joint Session of Congress should not count the electoral votes for Trump on January 6, 2025. The Supreme Court’s opinion does not address that possibility. Trump v. Anderson says that only Congress may enforce Section 3 against candidates for federal office and acknowledges that during Reconstruction each House of Congress did so against members-elect without any authorization from federal legislation. In other parts of the opinion, the Court says that federal legislation is required to enforce Section 3, but the counting of the electoral votes by the Joint Session is done under a federal law—the Electoral Count Reform Act of 2022. Then, at other points, the Court suggests that only a specific Section 3 enforcement statute passed under Congress’s power under Section 5 of the Fourteenth Amendment will suffice. The Court’s confusion on this question invites people who think that Trump is an insurrectionist and cannot be president to press that claim on the Joint Session.
One response to this scenario is that it is improbable that Trump will win and that the Democrats will win control of Congress. There could be a symbolic protest of Trump’s election next January 6, but that won’t amount to anything. But this answer is complacent for two reasons. First, the 2021 meeting of the Joint Session shows us what can happen at these symbolic protests. Second, the protests in 2025 could happen against the backdrop of Trump’s status as a convicted felon. We have no precedent for a convicted criminal as president-elect, and therefore, there is no way to know how people will respond to that fact in combination with the constitutional claim that the convicted criminal is an oathbreaking insurrectionist ineligible to serve.
What can be done to defuse this powder keg if Trump wins? President Joe Biden’s role will be critical. In practice, if the losing presidential candidate concedes, then the anger of his supporters subsides. But a concession may not be enough. One option is for Congress to exercise its Section 3 power and give Trump amnesty. This would end all doubt about his eligibility.
Another possible solution is that a federal lawsuit could be brought under the provision of the Electoral Count Reform Act that allows any “aggrieved candidate for President or Vice-President” to challenge the validity of the election results certified by the states with a claim “that arises under the Constitution or laws of the United States.” This action must be heard on an expedited basis by a panel of three federal judges with rapid review in the Supreme Court. And any judicial decision “shall be conclusive in Congress” when the Joint Session convenes to count the electoral votes.
While this provision could be read narrowly to exclude a challenge based on Section 3 or to say that only major-party candidates can bring a challenge, either reading would be unwise. The whole point of the provision is to settle presidential election disputes in court rather than in Congress. The Supreme Court could have done this in Trump v. Anderson. A presidential or vice-presidential candidate should give the Court a chance to correct its mistake if Trump wins.
In The Lord of the Rings, Treebeard the Ent says: “Wizards are always troubled about the future.” Law professors are wizards without the magic. Perhaps we worry too much about constitutional disasters that will never occur. But somebody should—just in case.
