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Friday, February 23, 2024

January 3rd Comes Before January 6th

That sinking feeling you sense is the growing realization that the Supreme Court's opinion in Trump v. Anderson will probably not resolve Donald Trump's eligibility to be President. Instead, the Court is likely to say only that states cannot enforce Section 3 against a presidential candidate (at least before the election). This means that Trump's eligibility can be raised in the Joint Session of Congress on 1/6/25. And there is a decent chance that Democrats will control the next House of Representatives, simply because the numbers are so close now. If Democrats also hold the Senate (whatever likelihood you give that), then we could face a constitutional implosion.

But that's only the beginning. Before the Joint Session meets, the new Congress must be organized. Democrats in both Houses might raise Section 3 challenges against Republican members-elect. This could be done as a prelude to a Joint Session challenge, but another factor is that such challenges could increase their margin in the Joint Session. A challenged member cannot vote until the challenge is resolved. Is that likely within three days? Probably not.

There are some workarounds to these problems, but there will be time to consider them after we get the Court's opinion. I just hope that the Court is thinking what might happen if Trump wins and if the merits of the Section 3 challenge go unaddressed now.


Posted by Gerard Magliocca on February 23, 2024 at 09:53 PM | Permalink


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