Guest post: There is no Adult in Charge who is going to step in

Originally a comment by Screechy Monkey on Now ineligible.

Beware of anyone telling you there are clear answers here.

I’m sympathetic to the arguments in the paper, though I wouldn’t draw any conclusions without hearing an opposing view. But even the authors of that paper concede that the major precedent on the “self-executing” issue is a case from shortly after the ratification of the Fourteenth Amendment, and it’s by the then-Chief Justice Salmon Chase (in his capacity as a circuit justice), and it comes out the other way.

I don’t want to get into a long discussion about stare decisis and such. Suffice it to say that it’s a perfectly acceptable argument to say that Chief Justice Chase got it wrong. And it’s possible that today’s Supreme Court would disagree with Chase and agree with the authors. But it’s not how I would bet, and not just because it’s a conservative court.

The article strikes me as a perfectly reasonable piece of legal scholarship, but I’ve seen it passed around recently as the 163rd version of “THIS time they’ve got Trump! Here’s the ONE WEIRD TRICK that will keep him from regaining the presidency!” (Not saying that’s what OB or HHO are doing here. This thing’s been making the rounds, and with people who are less restrained in their commentary.) And I just don’t see it happening.

I strongly suspect that the Biden campaign is not going to get behind any effort to block Trump from being on the general election ballot, and even the few Republicans (Christie, Hutchinson) who have criticized him aren’t going to try to get him disqualified from the primary ballot. Yes, it’s possible that some activist groups will sue on their own, or some enterprising Secretary of State or other election official will decide to act on his or her own. Then you’ll have counter-demands from the GOP that Biden be disqualified from the ballot because, I don’t know, his border policies are aiding and abetting an invasion and insurrection or whatever. And the courts are going to be strongly motivated to say “no, we are not having this election decided by individual state officials taking it upon themselves to declare what an insurrection is by watching some videos and reading some tweets. If someone actually gets convicted of something, maybe then.”

There is no Adult in Charge who is going to step in and assert his or her (supposed) authority to make sure Trump can’t be president again because he was naughty. The American electorate is going to have to do their job again. And yes, that makes me nervous.

That’s just a prediction, and I could easily be wrong. But I’m going to need to see more than “a couple law professors came up with a neat argument.” There are law journals full of such neat arguments that will never be adopted by an actual court.

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