It is Trump against Biden again in US

There was a very amusing TV clip on BBC World Service last week in which its man in Beijing, Stephen McDonell asks delegates milling about at the Great Hall of the People whom they preferred to be US president, Biden or Trump.

Most Chinese apparatchiks sidestepped the question, saying they hoped for good trade relations with the US; one wisely advised McDonell to ask the foreign ministry and another said she had not thought about it, but most ignored McDonell as an interloper who had no business asking silly questions of them.

Joking apart, the election of US president matters worldwide as America’s tentacles spread far and wide with consequences far beyond its shores. The choice this November is bad enough for Americans who are befuddled by the choice on offer between an octogenarian on the verge of senility and a raving egomaniac septuagenerian, but asking Chinese apparatchiks who they prefer takes the biscuit!

By contrast President Vladimir Putin of Russia had no qualms sharing his preference. When asked a few weeks ago whom he preferred, he said Biden because he was predictable, implying Trump was not. Despite giving a plausible reason for his preference, no one believed Putin. He is not the kind of man who would prefer someone who called for his overthrow. “For God’s sake this man [Putin] cannot remain in power” Biden said in a speech in Poland shortly after Putin ordered the invasion of Ukraine in 2022. It is more likely that Putin said he preferred Biden counterfactually to promote Trump, who is after all a well-known fan of his and not at all enamoured with US involvement in the war in Ukraine.

Barring a knock on the door from the Grim Reaper or incapacitating illness, a contest between the two oldies is certain after Nikki Haley pulled out of the Republican primaries last week. Trump won 14 of the 15 states on Super Tuesday, and no credible younger candidate has surfaced in the Democratic Party to challenge Biden.

It was also no coincidence that on the Monday the US Supreme Court (USSC) ruled in favour of Trump in his judicial review of the Colorado Supreme Court’s (CSC) decision that disqualified him from running in the primaries in Colorado. The CSC had disqualified him for his speech to an insurrectionist mob on January 6, 2021 having previously taken the oath to uphold the constitution as president four years earlier which the CSC decided fell foul of the 14th amendment.

The question for the USSC was whether the disqualification was constitutionally sound. In a unanimous decision the USSC held the decision was unconstitutional and reversed it. The USSC held that states did not have the constitutional power under the 14th amendment to disqualify a candidate for US president; they have power to disqualify state officers for insurrection but not federal officers, especially candidates for the presidency.

All nine justices agreed that allowing Colorado to disqualify a candidate would create a chaotic “patchwork at odds with US federalist principles” but they were not unanimous on by whom and how a candidate for federal office could be disqualified. The majority decided only Congress had the power to disqualify a candidate for president, whereas the minority preferred not to decide the point – invoking judicial restraint that judges should only decide points of law necessary to dispose of a case.

For unreconstructed federalists like myself who believe the federal way is the finest and fairest way in Cyprus too, the case was fascinating in all its aspects including the split between the majority who wanted the point resolved and the minority who wanted to leave the point open until it arose directly for decision in a federal case.

The conservative majority – five of the of nine justices – held that the 14th amendment gave the power to Congress to disqualify insurrectionist federal officers and to do so by passing specific remedial legislation directed at particular insurrectionist.

In effect, the majority excluded any other method of disqualification of Trump unless Congress passes legislation specifically directed at disqualifying him from being a candidate for president.

The minority objected on the grounds that it was not necessary to decide such a difficult and momentous constitutional point to dispose of the case. The majority disagreed saying that their decision was based on a combination of reasons including the provision in the 14th amendment that gave Congress the role of enforcement. And that historically section 3 of the 14th amendment was introduced at the time of the American civil war to prevent pro slavery insurrectionists from holding offices in both state and federal government but reserved to Congress enforcement in respect of federal officers.

The decision of the majority removes any remaining obstacle to Trump’s path to the White House. Even if he were to be tried and convicted of the insurrection he has already been charged with, he could still be a candidate for president unless Congress disqualifies him by passing a specific law directed at him.

As it is unlikely that he will be tried before November the problem is theoretical, but in any case Congress in its present composition is not likely to pass such a law. Let us therefore brace ourselves for a real prospect of second Trump presidency. His greatest achievement last time was that the US during his time in office the US had not embarked on any serious military operations overseas. But as Putin said, he is unpredictable and unpredictability in a US president is scary.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge