10th circuit judge states in published opinion that Trump may be eligible for election to a third term

This seems like maybe not such a great thing all things considered?

The background here is that John Anthony Castro decided to run in the 2024 New Mexico Republican presidential primary, and sued in federal court for an injunction to keep Donald Trump off the the primary and general election ballots on the grounds that the anti-insurrection clause of the 14th amendment made Trump ineligible. A federal district judge tossed the suit for lack of standing to sue, on the basis of the conclusion that Castro wasn’t a serious enough candidate to be eligible to file such litigation.

Castro appealed, but before his appeal was heard Trump was re-elected president. The 10th Circuit Court of Appeals (this is one step below the SCOTUS in the federal court hierarchy) just issued its opinion in the case. Two judges on the three-judge panel thought the appeal should be dismissed because the 22nd amendment made Castro’s appeal moot. “Mootness” is a technical concept that means that the legal injury the plaintiff was suing to stop from happening has happened already, and there’s no reasonable probability that the same injury could potentially re-occur, so there’s no longer a real legal dispute to litigate. Castro was saying that Trump wasn’t eligible to be re-elected because of the 14th amendment. Two of the three federal appeals judges said this isn’t a live dispute any more because Trump has been re-elected, and can’t be re-elected again, because of the 22nd amendment, so Castro’s complaint is moot in regard not only to the 2024 election, but future presidential elections as well.

Enter Judge Allison Eid, late of the Colorado Supreme Court, and before that the University of Colorado Law School, where we were on the faculty together for about a decade:

I agree with the majority’s conclusion that, following the 2024 presidential election, Castro’s claim is moot. But I see no need to address the Twenty-second Amendment to reach that conclusion.

Um, wut, as I believe Justice Holmes would have put it?

We should be reluctant to opine on a novel and complex constitutional question when doing so is not essential to resolve the case.

Eid then cites a bunch of cases supporting the widely accepted interpretive principle in federal court litigation that a federal court shouldn’t decide a case on the basis of taking one view or another of a difficult and contentious issue of constitutional law, if there’s another legal basis for deciding the case. The other basis here, says Eid, is that whether or not Castro would run for president again in 2028 is at that point highly speculative, so his lawsuit can be dismissed as on that basis, without having to decide the “novel and complex question” of whether Donald Trump is eligible to be elected president for a third (or fourth or fifth etc.) time.

This is called the “avoidance of constitutional questions doctrine,” but it is only supposed to apply to very real current and ongoing disputes about constitutional law. Whether or not Donald Trump can dissolve the Congress of the United States by executive order is not, for example, the kind of “constitutional question” that a federal court is supposed to avoid deciding. I think, although perhaps my jurisprudential aim is no longer true in these new and exciting times for American constitutional interpretation.

What’s going on here is not mysterious, and two-fold:

(1) Allison Eid was on a list of a dozen people put together by somebody — my guess would be Leonard Leo — that got sent to Trump when he was considered filling a SCOTUS vacancy during his first term. So her ambition to do whatever is necessary to get the big chair isn’t or at least wasn’t completely delusional, although she must be about 60 now and long dead by the time I return to Earth — sorry 1970s flashback — which makes her not Donald Trump’s type, jurisprudentially speaking. Still, denial is not just a river etc.

(2) Even if she realizes her own aim is no longer true in regard to getting appointed to the SCOTUS, Eid has always been a good foot soldier in Leo’s army, and she’s very consciously laying the groundwork, in a federal appellate court opinion no less, for the claim that there’s some sort of actual argument or dispute or controversy or something about whether this sentence of the Constitution appears to mean what it says:

No person shall be elected to the office of the President more than twice[.]

Note that the rest of the 22nd amendment involves only the questions of whether it applies to Harry Truman, and what application it has to vice presidents who become president during another president’s elected term. So you only have to read the first fourteen words [ironic] to decide the “novel and complex constitutional question” of whether Donald Trump can be re-elected again.

As for Allison: Sometimes I wish I could stop you from talking when I hear the fascist things that you say.