Three Constitutional scholars, of disparate ideologies, have filed an interesting Amicus Curiae (friend of the court) brief with the United States Supreme Court in the case considering whether Donald Trump is Constitutionally eligible to be on the ballot. You can read the brief HERE.
The brief does NOT take a position on whether Trump is Constitutionally eligible. Rather, the thesis of the brief is that the Supreme Court must directly address and resolve the substantive question of whether Trump is Constitutionally eligible. The Court must resolve this, and not dodge the question via a procedural or jurisdictional based ruling, for to not resolve the substantive question would “risk political instability not seen since the Civil War.” As discussed later, the amicus brief presents three scenarios that could create chaos in the 2024 election.
The brief is obviously rooted in concern over a dissenting opinion, by Justice Samour, in the Colorado Supreme Court decision barring Trump from the ballot in that state. Samour argued state courts lacked authority to bar Trump from office. The amici are concerned the Supreme Court could punt on the substantive question by agreeing with Justice Samour’s dissent, and other amicus briefs that argue Congress must determine whether Trump is eligible, most likely during the counting of electoral college votes in early January.
This amicus brief argues that the State of Colorado, and its Supreme Court, very much had the power to exclude Trump from the ballot on Constitutional eligibility grounds. The power of states to exclude candidates on grounds other than Section 3 of the 14th Amendment, for example because they don’t meet the age requirement, are not natural born citizens, or have already been elected President twice, is unquestioned. Further, the ban applies to state offices as well as the federal Presidency, and it would be absurd to claim a state could not make such a determination for its own offices.
The brief rejects the contention that Congress must act to bar a President from office. That is not true for any of the other qualifications for the Presidency banning certain people from the office. Courts, including state courts, have the power to enforce Section 3 of the 14th Amendment just as they have the power to enforce other sections of the Constitution. Section 5’s granting Congress the power to enforce the 14th Amendment limits the judiciary’s ability to enforce Section 3 no more than it limits the judicial branch from enforcing Section 1’s due process clause.
Thus, the Colorado Supreme Court had jurisdiction to say Trump is not eligible and cannot be on the ballot. However, the United States Supreme Court undeniably has jurisdiction to review the Colorado decision on those merits and rule whether on those merits it was properly decided.
Towards that end the amicus brief argues that, “failure to resolve the merits now would place the Nation in great peril.”
“A decision vacating the lower court’s judgment on procedural or jurisdictional grounds, thus reinstating Mr. Trump on the ballot without deciding the merits of the disqualification question, would not reflect an admirable judicial modesty; it would instead mark a dangerous refusal by this Court to do its duty.” (see p. 12 of the brief).
The brief then submits three scenarios, where if the the court fails to resolve the heart of the question of Trump’s eligibility, disaster, chaos and Constitutional crisis could follow when the time comes to sort out and confirm electoral college results.
1. Trump wins the electoral college votes and members of Congress challenge his votes on Section 3 grounds. Such challengers will argue that a majority of both Houses already found him ineligible when the House impeached him and 57 members of the Senate voted to convict. The brief argues the results of this claim are uncertain, but that it would risk violence against lawmakers that could be “avoided by a pre-election answer in this case.”
2. Trump wins the electoral college and Congress separately votes afterwards to declare him ineligible. The brief similarly argues, “there is no guarantee that Mr. Trump would accept a congressional disqualification. He likely would not — and, as he did on January 6, 2021, he may invite his supporters to resist with violence.” Further, if this did happen neither the Constitution or the statute are clear as to who would be President or how such would be determined. “The consequences of that uncertainty would be existentially perilous to the United States, and they must be avoided if at all possible.”
3. The final scenario is that a third party candidate siphons enough electoral college votes that neither Trump nor Biden wins an electoral college majority, throwing the election into the House. The House then, alone, votes that Trump is not eligible, effectively installing his opponent as President. The amicus brief again predicts chaos, and possible violence in the wake of such political posturing.
For such reasons, the amicus brief urges the Supreme Court to not engage in “kicking the can down the road,” but to rather head off all concerns by resolving the question of whether Trump is ultimately eligible with finality. The brief concludes with the following:
“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. This Court stands between the potentially disastrous turmoil that would result and a comparatively peaceful election administered consistent with the Constitution and the rule of law. It should not let this opportunity to stave off political instability pass.”
Rather persuasive stuff.
