"‘They didn’t do it clearly enough’: SCOTUS ruling prompts worries of another Jan. 6 crisis" - Election Law Blog

"‘They didn’t do it clearly enough’: SCOTUS ruling prompts worries of another Jan. 6 crisis" - Election Law Blog

RICK HASEN

Politico:

The Supreme Court said Monday it was avoiding “chaos” by squashing state-level efforts to throw Donald Trump off the ballot.

Instead, the high court may have just shifted that chaos to Congress.

The decision ignited an intense debate among election experts and constitutional scholars about whether the court has opened a path to another Jan. 6 crisis four years after the attack on the Capitol.

That’s because the justices explicitly ruled that the power to determine whether Trump is eligible for another term as president — or is disqualified as an “oathbreaking insurrectionist” — lies with the House and Senate.

The five justices who fully endorsed the court’s lead opinion envisioned Congress passing “enforcement legislation” to make this call. But scholars say the 13-page opinion left room for Trump’s detractors to pursue another path if he receives a majority of electoral votes this November: They could try to throw out his electoral votes on Jan. 6, 2025, when Congress will meet to certify the winner of the 2024 election.

Such a scenario would be an extraordinary turnabout. On Jan. 6, 2021, Trump promoted bogus claims of voter fraud to lobby congressional Republicans to block the certification of Joe Biden’s victory — a push that inspired a mob to storm the Capitol and lash out violently when the effort failed. His allies relied on fringe interpretations of the 12th Amendment to push their last-ditch gambit….

“They were trying to avoid all of this. They were trying to foreclose an effort to disqualify Trump after he wins,” said Ned Foley, a constitutional law expert from Ohio State University. “But they didn’t do it clearly enough.”

The lack of clarity, he continued, has sparked a debate: “Is there power in Congress to consider the [disqualification] issue in January?”

The court’s opinion did not explicitly address that scenario. The opinion did stress that, for federal lawmakers to enforce the insurrection clause, they would have to set out criteria for who is disqualified. Congress, the court added, has not passed any legislation enforcing the provision since 1870.

Some experts say formal legislation is crucial. It would strain credulity, they said, for Trump’s opponents in Congress to attempt to unravel an Electoral College victory by the ex-president, at least without forcing them to embrace some untested theories of their own.

“I think today’s opinion will at least close the door on some of that discourse,” said Derek Muller, a constitutional scholar at the University of Notre Dame….

So far, Democrats in Congress — including two who served on the Jan. 6 select committee and concluded that Trump indeed joined an insurrection in 2021 — have expressed caution and restraint.

“It does not at first read appear that the Court indicated a viable path to implement Section 3 of the 14th Amendment absent enactment of a law outlining procedures to do so,” said Rep. Zoe Lofgren (D-Calif.) in a statement on the court’s ruling. But she added that she is continuing to review the ruling and hopes to hear from legal experts on Congress’ role.

Rep. Jamie Raskin (D-Md.) echoed that sentiment, telling POLITICO “my initial reading of it suggests that they are saying that Congress must act … to pass a statute, but I am not certain of that and we want to explore it. So I don’t want to pronounce on that.”