Over at Common Ground Democracy, I’ve posted a new column that I hope will be of particular interest to ELB readers. It describes the different ways the Supreme Court could decide the Colorado case and argues why, if the Court is going to reinstate Trump to the ballot, it should do so by affirmatively declaring him eligible to serve as president (and thus not disqualified by section 3 of the Fourteenth Amendment) rather than evading the merits of the eligibility issue by relying upon one of the available procedural “off-ramps” that have been identified–most especially that Congress must enact a statute permitting enforcement of section 3 before any state can adjudicate a disqualification issue under it.

The focus of the piece is the danger that, if the Court leaves the merits of the disqualification issue open by invoking a procedural off-ramp, members of Congress will consider themselves empowered to revisit the issue after the election (assuming Trump wins). That could create a period of instability between the November election and January 6, 2025. As part of its analysis of the risk, the column points to the fact that one Republican member of Congress in response to the Colorado and Maine rulings regarding Trump has already asserted that Congress will have the last word on the matter. To minimize the chance of a tumultuous congressional dispute over the outcome of the election, the Court should exercise its Marbury v. Madison authority now to render its judgment on whether or not the Constitution properly interpreted permits Trump to return to the presidency in light of his conduct in relation to the January 6 attack on the constitutional procedure for counting the electoral votes in the last presidential election.