To the surprise of precisely no one, the Supremes were clearly determined to find an off ramp to permit Trump to remain on the ballot in all fifty states during yesterday’s oral argument. Which rationale will they choose?
The three apparent contenders, based on the questions, are as follows:
- PRIMARIES ARE RUN BY THE PARTIES, NOT THE GOVERNMENT, SO THE DISQUALIFICATION ISSUE IS PREMATURE: This line of reasoning is both legally sound and wildly impractical. Pulling Trump off the ballot months after he becomes the GOP nominee would be a complete nightmare.
- THE PRESIDENT IS NOT INCLUDED IN THE LIST OF OFFICERS SUBJECT TO DISQUALIFICATION: This approach is inconsistent with logic and the text of the Fourteenth Amendment, has little support in the legislative history, and would give a green light to any future president who wants to use the armed forces to stay in office.
- DISQUALIFICATION REQUIRES ADDITIONAL CONGRESSIONAL ACTION: The intent here is to provide a federal remedy for an essentially federal issue. No one state has the right to dictate a result to the others; no record in any state proceeding should be binding on the rest; and having a jumble of inconsistent state decisions would be a disaster. Of course, the Court could address most of these problems by providing one definitive ruling that is binding on all of the states, but it didn’t appear to want to do that, possibly for procedural reasons.
The bottom line here is that the last of the three lines of reasoning will do the least amount of harm to the system. There is reason to believe it will prevail. Let’s hope that it does, and that the quid pro quo for the three liberals is a decision not to hear Trump’s appeal on the immunity issue.