The Washington PostDemocracy Dies in Darkness

Opinion Why the Supreme Court ought to punt on Trump’s eligibility

(Jon Elswick/AP)
5 min

Donald Trump’s Iowa caucuses romp raises the stakes in Trump v. Anderson, the Supreme Court’s review of a Colorado ruling disqualifying him from the state’s ballot. Soon after the justices hear the case next month, Trump could be the presumptive GOP nominee. The meaning of the 14th Amendment’s disqualification-for-insurrection clause will cease being an academic hypothetical and start being a question of whether states can, in effect, block an unfolding presidential nomination process.

Meanwhile, the Supreme Court briefs have poured in. Most retread familiar legal ground, but an amicus brief filed Thursday by election law scholars Edward B. Foley and Richard L. Hasen, along with election lawyer Benjamin L. Ginsberg, makes a distinctive appeal: Whatever you do, the trio urges the justices, don’t punt on the question of Trump’s eligibility. Either rule that he is qualified for the presidency or rule that he is disqualified from it, full stop — don’t reverse the Colorado decision on “procedural or jurisdictional grounds.”

Otherwise, if Trump wins the election in November, Democrats in Congress could try to block the certification of his electoral votes next January, as some Republicans did for President Biden’s in 2021. That would risk “catastrophic political instability,” the brief plausibly warns. But it overestimates the Supreme Court’s ability to head off such instability. And it understates the risk from more judicial entanglement in the election than necessary. Deciding that insurrection is a question for Congress might actually be the most statesmanlike solution available to the justices.

Some background: Section 3 of the 14th Amendment disqualifies certain officeholders who “engaged in insurrection” from holding certain offices in the future. Colorado says this applies to Trump because of the Jan. 6, 2021, riot. The Foley brief urges the Supreme Court to pronounce whether Colorado is right or wrong on the merits. But there’s a separate, procedural question: Is the disqualification provision enforceable without further guidance from Congress? The 14th Amendment says Congress can enforce it “by appropriate legislation.” Congress has passed legislation disqualifying people criminally convicted of insurrection, but Trump hasn’t been charged with that crime.