Ian Bassin for Lawfare:
Fast forward to August of this year: The Democrats are convening in Chicago to make their presidential nomination official. Behind the scenes, a secret scramble is in the works. With polling continuing to show the incumbent trailing badly, and protesters in the streets opposing the president’s support for the war in the Middle East invoking images of 1968, the president and his advisers conclude it would be in the best interests of the country if he stood down. Trying to cast the convention more as the RNC in Chicago in 1860 than the DNC in Chicago in 1968, they decide to throw the nomination open to the delegates so a more competitive candidate can emerge.
After three days of raucous floor argument unlike any seen in nearly a century, the delegates converge on two conclusions: First, the threat Donald Trump poses to the Republic is existential, and all other considerations aside, they must pick the person most likely to beat him; and second, the most popular figure out there with the best track record of unifying the Democratic coalition to win a hard national election is Barack Obama.
Of course, the objection is raised that Obama is ineligible, having already served two terms. The 22nd Amendment to the Constitution is clear: “No person shall be elected to the office of the President more than twice.” But that objection is met with a powerful rejoinder: Donald Trump is ineligible as well, barred by Section 3 of the 14th Amendment for having engaged in insurrection and having given aid and comfort to insurrectionists. Earlier this year, bowing to fears that Trump and his supporters might unleash chaos or violence if he was struck from the ballot, and accepting—at least implicitly—the argument that voters, not courts, should decide who to elect, the Supreme Court declined to enforce the terms of the 14th Amendment against Trump.
Tired of one standard applying to Donald Trump and another to everyone else, Democrats rally behind Obama and, on the fourth day, nominate him by acclamation. States led by Republican officials refuse to place him on the ballot, citing his ineligibility. But states led by Democratic officials, following the Supreme Court’s declination to bar Trump, place Obama on the ballot, putting him on the ballot in enough states to potentially win 270 Electoral College votes.
Trump supporters in Michigan sue, and the case quickly reaches the Supreme Court. What should the Court do? In this imagined future, what is the Court likely to do?
Until recently, the answer to the first question was uncontroversial: It should strike Obama from the ballot. But in this scenario, the answer to the second question is much harder: The Court would have to know that keeping the likely Republican nominee on the ballot but knocking the preferred Democrat off would render it partisan beyond repair.
This scenario is of course solely for purposes of illustration. Joe Biden is not going anywhere. But one aspect of it is not entirely made up. While Barack Obama has never suggested running for a third term, Donald Trump has. Repeatedly.
“We are going to win four more years,” he said in August 2020, “and then after that, we’ll go for another four years because they spied on my campaign. We should get a redo of four years.” He went on a month later: “After [getting reelected], we’ll negotiate, right? Because we’re probably — based on the way we were treated — we are probably entitled to another four after that.”
Notwithstanding the implausibility of this argument as a legal matter, it is not hard to see how, if returned to power, Republicans might rally behind it in 2028 just as Democrats might rally behind Obama in the tale just told, especially if the Supreme Court decides this year that it is not its job to enforce the Constitution to bar popular candidates from the ballot. …