CNN
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When it comes to deciding whether former President Donald Trump should be kicked off Colorado ballotthe simplest path the Supreme Court could take today could end up causing the most chaos early next year.
That’s the dire warning from a group of legal experts who fear the court is taking on the world’s biggest question. Blockbuster case challenging Trump’s electability for a second term – if the former president took part in an insurrection – and decide that it is up to Congress, not the states, to enforce the “prohibition of insurrection” included in the 14th Amendment.
In interviews and court documents, legal scholars have used phrases such as “catastrophic constitutional crisis,” “political instability” and “horribly ugly” to warn judges against taking the easy way out of a dispute they say could “come back in force”. next year if Trump wins the election.
“This is a volatile matter,” said Gerard Magliocca, a law professor at Indiana University and one of the nation’s leading experts on interdiction.
Based on their questions during more than two hours of oral arguments Thursday, a large majority favored Trump’s assertion that Colorado did not have the authority to impeach him.
But that wouldn’t answer the question of whether Congress can decide he’s ineligible.
If judges rule that states cannot enforce the ban — and if Trump wins the November general election — that could spark a fight over whether Congress should enforce it. The theory is that Democratic lawmakers would challenge Trump’s eligibility when electoral votes are counted next January.
“If the court just says states can’t apply (the ban) to presidential candidates, that doesn’t amount to saying Trump is eligible,” said Magliocca, who supported Colorado electors challenging Trump . “The court would not take a position on this issue. And that means if Trump wins, people will feel free to go to Congress on January 6, 2025, and ask them to declare him unelectable.”
The ballot case is separate from Trump’s claim of immunity from criminal prosecution, which landed at the Supreme Court on Monday. Trump asked the high court in that case to block a Washington Circuit ruling that rejected his request for immunity from election subversion charges brought by special counsel Jack Smith.
As part of the election dispute, Trump is appealing a decision of the Colorado Supreme Court in December that he incited the attack on the U.S. Capitol as electoral votes were being counted in 2021.
The arguments before the U.S. Supreme Court last week were less about whether there had been an insurrection and more about technical questions about whether states could enforce the ban. A decision could come at any time.
Many experts speculate about the chief justice John Roberts may be impatient to process the ballot file quickly and with an approach close to unanimity. If he seeks a ruling likely to gain support from both conservative and liberal justices, he will likely avoid discussing whether Trump participated in an insurrection.
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Before the debates took place, some researchers were sounding the alarm over a decision that would not resolve fundamental questions about Trump’s role on January 6. 2021. A brief filed last month by three prominent election law experts warned of a worst-case scenario that they said would “fan the flames of public conflict.”
“Worse still for the nation’s political stability is the prospect that Congress will vote to disqualify him after he apparently wins the Electoral College,” the lawyers wrote. “Neither Mr. Trump nor his supporters, whose votes will have effectively been rejected as invalid, are likely to accept such a statement without saying anything. »
And, they write, the rules for what happens next if Congress were to declare Trump ineligible are “dangerously unclear.”
The court could avoid uncertainty by clearly holding, for example, that Trump was not involved in an insurrection or that the 14th Amendment’s prohibition does not apply to former presidents. Trump argued that when the insurrection ban referred to someone serving as an “officer of the United States,” that language referred to federal officials appointed by the president, not the presidency itself.
It could also encompass one of Trump’s earlier arguments that his words at a rally outside the White House before the Capitol attack were protected by the First Amendment.
“None of these decisions would leave the question open to Congress,” said Edward Foley, director of the election law program at Ohio State University and one of the authors of the brief filed with the Supreme Court last month.
A political fight over electability would likely be confined to Congress, but it could also push the Supreme Court back into the thicket.
“Depending on the horror of the situation, the court might feel compelled to get involved,” Foley said.
The question of future consequences was raised during last week’s pleadings, notably during a brief exchange between Justice Ketanji Brown Jacksonappointed by President Joe Biden, and Jason Murray, the attorney representing electors challenging Trump.
“If we believe that states cannot enforce this provision for whatever reason in this context, in the presidential context, what happens next in that case? » asked Jackson. “It’s finish?”
Murray said the current matter would be over, but warned the underlying problem could “come back with a vengeance.”
Ultimately, Murray said, members of Congress “may have to make a decision after a presidential election whether or not President Trump wins is disqualified from office.”
If Trump wins in November, it’s possible that some Democrats will try to throw out votes cast for Trump, said Derek Muller, a law professor at Notre Dame who has followed the case closely. Politically, Democrats would need to gain majorities in both chambers to have any chance of success. And if they succeed, the election will go back to the House of Representatives to choose the next president — an outcome, Muller said, that “no one wants to see.”
CNN’s Katelyn Polantz contributed to this report.
