FWIW, I’ve heard a number of legal experts (e.g., Barbara McWade) say that this is the weakest of Trump’s weak arguments, and SCOTUS will spend little time dismissing it. Even the most strict textualists don’t sign off on a “plain meaning” interpretation when a specific application leads to a cruel or absurd outcome, or so says the experts I’ve heard.
I’d agree that a ruling that concludes, “Sure, you can be elected, but not so fast in expecting an invitation to the inauguration” clearly crosses the boundary into absurd-land.
What this would be saying is that the actions Trump took to overthrow the election are perfectly acceptable. To cross that line, you will have to do more. Bigger crowd. More weapons. Kill more people, perhaps a legislator or two. This is telling the next guy to try harder. Is that where anyone sees the SC going?
I actually agree as well. To clarify, I wasn’t arguing the merits but responding to the OP’s question as to how might the Court rule. The core canons of textual interpretation are apply the plain meaning and avoid absurd or unjust results. However, several Supreme Court justices have evinced a willingness to disregard those canons so as to reach desired outcomes.
For example, see King v. Burwell, in which Justices Scalia, Thomas, and Alito dissented and sought to apply a hyper-literal textual interpretation that would have rendered entire sections of the ACA superfluous, rather than examine the broad structure and purpose of the law.
Here, I could see Justices Thomas, Alito, and Gorsuch doing the same and potentially persuading Justices Barrett and Kavanaugh to go along with them.
I’m guessing they’ll hang their hat on due process. Trump was never convicted of engaging in insurrection. Sure there’s nothing in the Constitution to indicate a criminal conviction is needed, but the bottom line is there’s no way for the Supreme Court to disregard the 14th Amendment without looking stupid in the process. So since you ask what argument they’ll cite, this stupid one is as good as any other and would result in less chaos than leaving it up to the individual states to decide.
Didn’t read the whole thread, but worth remembering that – in an earlier role – Gorsuch already weighed in. I’ll be very interested in hearing from him today:
Interesting. That ruling won’t prevent him from making up a myriad of other excuses for allowing Trump to be on the ballot, but it should (operative word there) prevent him from saying that he can be on the ballot even if he is disqualified from actually serving. Maybe if the other justices use that argument he could write a minority concurrence agreeing with the decision but for a different reason.
(IMHO he started his insurrection before 2016, but anyway…)
To answer this, yes you are correct, but that does not negate my point, there is no legal disqualification from candidacy for insurrection while being an oath taking officer. As a candidate is not an officer. So again Trump can run, he just can’t get the prize.
And since the candidates are really left up to the states, it’s not a SCOTUS issue but falls on each state and their laws.
I think this is the most likely tack. The “candidates aren’t officers” route leads to madness. The “the President isn’t an officer” is just stupid.
But they can probably cobble something together that says that you can’t enforce the 14th without some form of due process that requires a court to affirm that the candidate violated the 14th. So then they need to explain why Colorado’s process wasn’t just.
They may also put in a bit of “Congress should have passed enabling legislation defining the process for disqualification, but they didn’t so we have to error on the side of Democracy and allowing candidates to appear on the ballot”.
My vote is on them finding it a political question and leave it to Congress to decide through passage of a resolution declaring him ineligible.
The key is that he needs to be (in)eligible in all states because the 14th Amendment applies across the country. Do you want a system when a few states decide that a candidate did not meet their definition of 14 year residency or being an NBC?