Gerard Magliocca in Washington Monthly:

One goal of both parties to the Section 3 lawsuit was to obtain a decision on Trump’s eligibility before the election. As Justice Louis Brandeis once wrote, it is usually more important that the “law be settled than it be settled right.” Disqualifying Trump from office was the way to settle the case right. Resolving Trump’s eligibility one way or the other was the way to settle the case. Unfortunately, the Court did neither. Instead, the opinion said that Congress, not a state government, must act to disqualify him from federal office. The Court’s failure to tackle the insurrection issue head-on means that, even if Trump wins and is inaugurated, millions of Americans in good faith could (and probably will) still believe he is not eligible to serve another term. Though this alone may be more of a nuisance than a problem, this belief that Trump is not the lawful president could cause considerable mischief in the coming years.

The most acute danger from the Court’s indecision will come between Election Day and Inauguration Day. Suppose that Trump wins and the Democrats win control of Congress. Many will argue that the Joint Session of Congress should not count the electoral votes for Trump on January 6, 2025. The Supreme Court’s opinion does not address that possibility. Trump v. Anderson says that only Congress may enforce Section 3 against candidates for federal office and acknowledges that during Reconstruction each House of Congress did so against members-elect without any authorization from federal legislation. In other parts of the opinion, the Court says that federal legislation is required to enforce Section 3, but the counting of the electoral votes by the Joint Session is done under a federal law—the Electoral Count Reform Act of 2022. Then, at other points, the Court suggests that only a specific Section 3 enforcement statute passed under Congress’s power under Section 5 of the Fourteenth Amendment will suffice. The Court’s confusion on this question invites people who think that Trump is an insurrectionist and cannot be president to press that claim on the Joint Session.

One response to this scenario is that it is improbable that Trump will win and that the Democrats will win control of Congress. There could be a symbolic protest of Trump’s election next January 6, but that won’t amount to anything. But this answer is complacent for two reasons. First, the 2021 meeting of the Joint Session shows us what can happen at these symbolic protests. Second, the protests in 2025 could happen against the backdrop of Trump’s status as a convicted felon. We have no precedent for a convicted criminal as president-elect, and therefore, there is no way to know how people will respond to that fact in combination with the constitutional claim that the convicted criminal is an oathbreaking insurrectionist ineligible to serve.

What can be done to defuse this powder keg if Trump wins? President Joe Biden’s role will be critical. In practice, if the losing presidential candidate concedes, then the anger of his supporters subsides. But a concession may not be enough. One option is for Congress to exercise its Section 3 power and give Trump amnesty. This would end all doubt about his eligibility.