In his cert. petition in the disqualification case, Donald Trump argued: “Congress—not a state court—is the proper body to resolve questions concerning a presidential candidate’s eligibility….There is no similar commitment of questions concerning presidential eligibility to
state courts, particularly in the absence of a duly enacted enforcement statute. Considering the Constitutional role for Congress in addressing presidential qualifications, it is little surprise
that every court except Colorado that has addressed the political question doctrine when presented with the question of determining President Trump’s eligibility has held that question is nonjusticiable and reserved to Congress.”

This argument is gone in Trump’s brief on the merits. The closest the brief comes now is arguing: “Section 3 should be enforced only through Congress’s chosen methods of enforcement.” (Note the weak “should,” first flagged by Chris Geidner in his indispensable Law Dork newsletter.)

Why the change? It’s easy to imagine the Supreme Court punting on the merits and leaving the issue to be resolved by Congress after the election. (The Foley-Ginsberg-Hasen amicus brief spells out some of that chaos.) One scenario is that Congress after Trump appears to win determines he’s disqualified, or there’s a dispute about it. If Democrats control Congress, Trump would want to go to SCOTUS to fight about it, and not leave it as a nonjusticiable question for Congress.

Did the lawyers not think this through when they filed their cert petition?