Trump and the Fourteenth Amendment

The Supreme Court has chosen to consider Donald Trump’s appeal from the Colorado decision that his name should not appear on the Republican primary ballot. There is much speculation about what the court will do in this case. Many would argue that Trump is indeed ineligible to again hold the office of president under Section 3 of the Fourteenth Amendment. Although that philosophy has been applied with a healthy dose of hypocrisy, the court’s embrace of originalism would seem to incline it to ratify the Colorado decision, possibly leading to Trump’s being removed from all ballots involving federal office.

The consensus seems to be that the court will not do that, partly because a third of the justices owe their appointment to a President Trump and because such a decision would upset Trump supporters and lead to civil unrest. The former argument is illegitimate and the latter argument seems weak, given that the Dobbs decision suggests that the justices do not give a damn about public reaction to their rulings. It is probably fair to say, however, that there will be significant public disgust resulting from whatever the court decides.

It is widely believed that the court will somehow duck the issue at hand. Many tactics for doing this have been suggested, most of which seem farfetched. I do think the court has an out that, at the very least, buys time for the country and the court. The court could simply say that the Constitution only suggests that Trump cannot be president but says nothing about his running for president. Winning the Colorado primary, after all, only advances Trump’s chances of becoming a candidate for office. The court could therefore rule that Trump cannot be barred from running in presidential primaries.

If the court adopts this strategy, it is only likely to be forced to allow or not allow Trump to seek the presidency if Trump actually wins the Republican nomination. Alas, that situation seems likely.