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Thursday, February 03, 2022

Departmentalism Won't Look So Good

Here's another looming Section 3 problem. Suppose the Supreme Court does decide whether Donald Trump is eligible to run again. And they decide that he is eligible to run again. It's hard to imagine that this decision will be unanimous. You may get 3 or 4 dissenting justices who say that Section 3 bars Trump from returning to the presidency.

This outcome, while better than having no Supreme Court decision at all, is still troubling. Democrats will have a plausible basis in the campaign to say that Trump would not be a legitimate president if elected. They can continue to make this argument if he wins and is inaugurated. If you're a fan of departmentalism, this isn't a problem. But people might quickly become disenchanted with that theory if a Democratic Senate says: "Well, he's not the real president, so we're not confirming any of his nominees," or if a Democratic House says, "We're not inviting him to give the State of the Union--he's not the real president." Unfortunately, there is no easy solution to this issue if Trump runs  in 2024 and wins.

BTW, if a justice thinks that someone is ineligible to be president, what will she do in the first case where an official action of that president is challenged? Continue to insist that the president is an imposter, or acquiesce in the holding that he is eligible to serve? 

Posted by Gerard Magliocca on February 3, 2022 at 08:44 AM | Permalink


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