Balkinization  

Saturday, September 06, 2008

The 20th Amendment and a Palin presidency

Sandy Levinson

The 20th Amendment, which is in fact both an interesting and an important modification of the original Constitution, says, in Section 3, the following:

3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.


So let's try to decode this against the possibility of a successful presidential candidate--i.e., the winner of the general election and a majority of the electoral votes-- dying before the actual tally of the electoral college vote in early January. The "president elect" shall presumably "have failed to qualify" because he/she is dead. So the new president would be the VP, but only until a new president shall be qualified. I.e., there doesn't seem to be a sound argument for the proposition that the VP would be entitled to a four-year term of office as president, as would be the case if the president died after the tally but before Inauguration. (Compare with the procedures of the 25th Amendment, which clearly provide for similar temporary "acting presidents" in case of temporary presidential disability.)

If there is confidence in the competence of the VP, there would be lots of pressure to figure out a way to make his/her term the "regular" presidential one. Thus, if something happened to Obama, I suspect there would be attempts to make Biden the "real" president and not simply an acting president, though I'm still not sure exactly how this would be done as a legislative matter. However, if Palin were the VP, I continue to find literally incredible the view that there would be anything approaching a national consensus to turn her from "acting" to "four-year." She would have no legitimate claim to the four-year office, unlike the case after the vote is tallied (with a live McCain being declared the president-elect). Given my own belief, I suspect shared by millions of others, that the presumptive Democratic majority should do whatever it can to find a more fit president, we would, at that moment, be in a genuine "constitutional crisis" and not only a "political crisis."

Comments:

Professor Levinson- could you please explain your reasoning a little further? You assert that “there doesn't seem to be a sound argument for the proposition that the VP would be entitled to a four-year term of office as president, as would be the case if the president died after the tally but before Inauguration.” I am not sure if this refers to a policy argument or a textual argument. With regard to the text of Section 3, the section provides different outcomes depending on whether the President elect has died or has “failed to qualify.” It seems evident from the text that dying is not a form of failure to qualify. Moreover, there is nothing in the text that would seem to provide a basis for distinguishing between a person who died before the counting and one who dies afterwards. If the person in question is the “president elect,” then the first sentence applies. If the person is not the “president elect” (as the result of dying before the counting), then he or she could not be a president elect who failed to qualify either.

With regard to policy, I still don’t understand what reason there would be for distinguishing between a person who dies before and a person who dies after the counting. If a majority of electors vote for Individual A, what difference would it make whether Individual A dies before or after the ballots are opened before the Congress?
 

On the legal side of this question (the first para), I don't see how you can still be the president elect if you are dead. Also, qualified probably means that the person selected is qualified to be president -- e.g., that they are 35 and a natural-born citizen. It might also mean that they lack a majority of electoral votes, perhaps because there are three candidates or you have a Florida '00 situation and the deciding electors have yet to be seated. I's hard to square your interpretation of the language with the fact that it does not explicitly provide for the president elect dying before the votes are cast; that sentence appears immediately after one addressing presidential-elect death. Obviously the framers of this amendment were thinking about death and it sounds very strange to suggest that they meant to say that the VP would be only an acting president for 4 years when the VP would have had a real term had the president only lived for another month.

On the political side, you are off your rocker if you think that Congress could get away with not electing a VP to the top spot were the president to die before the electors' votes were counted. The only way this could happen is if the VP elect herself were to agree to pass on the job. Otherwise, common sense would dictate that whatever was going to happen if the president died after the counting should happen before. Remember that most people think that the counting of electors' votes is the very definition of a technicality (recall the general public revulsion at faithless electors) and would not take kindly to having their choice for VP scratched as a result. Your statement that Palin "would have no legitimate claim to the four-year office, unlike the case after the vote is tallied" presumes that people would let the Congress ignore the popular vote when there is no competing (living) winner of the electoral vote.

There would indeed be a constitutional crisis if Congressional Dems tried to thwart VP succession based on their dislike for, or lack of confidence in the VP. The choice belongs to the voters, not to the Congress. We don't live in a parliamentary democracy. OTOH, the only real crisis from Palin becoming president would be that the Dems don't like her or don't have confidence in her. That does not make a constitutional crisis, although it may make a psychological one. The Dems didn't like Adam Clayton Powell Jr. either and they had no choice but to seat him.
 

Zachary may be correct about what "the people" would demand if McCain-Palin came in first in the popular as well as the electoral vote. I don't think I'm off my rocker in believing that there would be rioting in the streets (perhaps that would be inevitable) if the Democrats accepted a Palin presidency merely because the ticket came in first in the electoral college but not the popular vote. What Zachary has to realize is that the electoral college is undemocratic, so that it is difficult to speak of an electoral (but not popular-vote) winner as being "the people's choice" rather than the winner in a system that has been rejected by American public opinion for at least the last 50 or so years but is impervious to change because of senators from states who believe that their states benefit from the present system.

As to "mis"'s comment, I think that being alive is a condition for "qualification," every bit as much as being 35 and a natural-born citizen. True, it's not written down, but that's because it literally never occurred to the authors that we might declare that someone who is dead has been "elected" president.

Perhaps the text is indeterminate; mis's interpretation is a possible one, whether or not it convinces me. So could we look forward to a 5-4 decision of the US Supreme Court declaring that Sarah Palin has a four-year tenancy on the Whte House? (More rioting in the streets....)
 

"I don't think I'm off my rocker in believing that there would be rioting in the streets (perhaps that would be inevitable) if the Democrats accepted a Palin presidency merely because the ticket came in first in the electoral college but not the popular vote."

"Given my own belief, I suspect shared by millions of others, [All Democrats, of course...] that the presumptive Democratic majority should do whatever it can to find a more fit president"

I think we are approaching the point where there will be at least a little rioting in the streets if a Democrat doesn't end up in the White House, no matter what the circumstances are. There's a portion of the Democratic party base that's becoming so radicalized that they're not willing to admit the legitimacy of any election they lose.

Indeed, "By Any Means Necessary"... It's not a good thing when a party thinks the end of taking power justifies any means.
 

Under such circumstances, I don't think people would tolerate any playing of politics with the election, but would demand a solution that represented its outcome, so they would insist that the responsible parties find a way to make things work out. Sandy, I don't think you give enough credit to the good will of the people and the patriotism of elected officials to make things turn out; you don't need to look past Gore rejecting challenges to Florida's electoral votes.

First, the president would have to die after December 15, the day specified for the electors to meet in the states. Otherwise, the electors could vote for a replacement slate.

Second, nothing stops votes for a dead person from being counted and the deceased being named president-elect. Then we have a president-elect dieing before taking office.

I don't think "qualified" is involved at all; if you had a president who had scruples against taking the consitutional oath, or a claim that a president-elect born in the Panama Canal Zone before Congress made such people citizens from birth were not native-born citizens, and those claims were being adjudicated in court, those could constitute temporary, potentially remediable disqualifications.

If another mechanism is needed, the governors of the states could issue new certificiates of appointment to the electors who could then vote for the replacement slate. This could be accompanied by some sort of nunc pro tunc statement: the electors are directed to vote as the would have voted on December 15 had they known that the president-elect would die and to date their votes December 15. This would result in two sets of electoral votes, each purporting to be given by the duly appointed electors on December 15. This would create disputed ballots to be resolved by both houses, which would be done in favor of the votes supporting the replacement slate.

Finally, even though the VP would only be Acting President, and thus could not nominate a new VP, and probably would be paid at the VP rate (if the Speaker of the House or President of the Senate did so, there is a statute to pay them at the presidential rate), there is no way except impeachment to reduce her term to less than 4 years.
 

It's a puzzle, all right, and I admit to being utterly unable to solve it. If you like unraveling legal intricacies it's a poser for you.

Practically, however, the puzzle is moot unless something drastic and unforseen happens between now and election day. To get into this puzzle, McCain has to win.
 

There's a portion of the Democratic party base that's becoming so radicalized that they're not willing to admit the legitimacy of any election they lose.

Meanwhile, back on Planet Earth, the Democratic Party conceded the illegitimate Supreme Court intervention in the 2000 election, but the Republican party (a) tried to undo the results of the 1996 election with an unjustified impeachment; (b) used thugs to intimidate the vote counters in FL in 2000; (c) recalled a CA governor on phony grounds; and (d) redistricted Texas in-between censuses for electoral advantage.

There is a party in this country which won't accept the results of democracy, but it's called the Republican Party.
 

Personally, it is times like these that I understand the original constitution.

Many think of the VP as a useless roll, and it has become more than useless this week: it is now dangerous.

The original constitution placed in office the two candidates with the most electoral votes.

That precludes the anti-democratic system of an appointed VP, an un-vetted VP, an un-popular VP, a red-neck VP.

You might say that we now have a system where an essentially unelected person could become president. That was not in the original.
 

If the situation arises, I presume that it will be settled by the Supreme Court, just like the Gore-Bush dispute in the 2000 election was.
 

Mark, I would have thought it clear that "a portion of the Democratic party's base" does not equal "the Democratic party". But, of course, it only takes a portion to provide Sandy's riots.

But, yes, there are Democrats who think the 2000 election was stolen, (Wrong, but not entirely nuts. It was close, and there were a lot of shady things going on on BOTH sides.) the 2004 election was stolen, (Wrong, and entirely nuts.) and think that given the least excuse, the Democratic majority in the House should do whatever it takes to make sure the right (Democrat) person ends up President.

I've watched over the last decade or two as the threshold among Democrats for seeing a stolen election has gradually dropped to the point where a not insignificant fraction of the party sees an election having been stolen any time you don't lose by a record landslide
 

But, yes, there are Democrats who think the 2000 election was stolen, (Wrong, but not entirely nuts. It was close, and there were a lot of shady things going on on BOTH sides.) the 2004 election was stolen, (Wrong, and entirely nuts.) and think that given the least excuse, the Democratic majority in the House should do whatever it takes to make sure the right (Democrat) person ends up President.

I'm sure there may be Democrats who think this. Hell, I'm sure there are Democrats who believe that The X-Files was reality TV. But considering that Kos tells people to give it a rest about the "theft" of the 2004 election, I think that pool of believers you mention is exceedingly small.
 

Sandy suggested there would be riots if, in the event of McCain dying, the House didn't see to it that Palin was kept out of the White house, IOW, if they didn't give Obama the job in place of the winning ticket. I was merely agreeing that, yes, there were enough nuts to put together a riot. But we really, really do not want to get into a situation where we're handing out offices on the basis of which party would riot otherwise, rather than the law.
 

It's not hard to imagine Democrats rioting in the streets were Palin to become president, or for any number of other reasons. But were the Democrat majority in Congress to take the presidency away from Palin, Prof Levinson is correct we would have a constitutional crisis. I for one would conclude that American constitutional government had ended and that the standing giovernment lacked legitimacy.
 

You might say that we now have a system where an essentially unelected person could become president. That was not in the original.

Not quite true - here's a scenarion where that could happen in the original, although you would still get a sensible resolution. Suppose someone won in a landslide, which was obviously going to be so big that the other party didn't field a serious candidate, but only a weak straw man. They then die. The electoral college (hopefully) doesn't let anyone win, and the resulting mess is handed off to the House of Representatives to let them come up with a sensible solution, which would likely result in the election of reasonable President and VP, neither of wom were elected.
 

BTW, can we dispense with the partisan slurs? This is interesting as a theoretical question on either side. Both McCain and Obama have higher than normal risks of death between being elected and taking office - McCain because of his age, and Obama because of the higher risk of assassination.
 

rmadilo said: 1:08 AM --
>>>>>> You might say that we now have a system where an essentially unelected person could become president. <<<<<<

We had such a president -- Gerald Ford. When he became president, he had not been elected president or vice-president.
 

Larry:

Ford became president through constitutional means. He was appointed by Nixon to fill a vacancy at VP and confirmed by both houses of Congress. Then he became president through succession. You did not have a situation where a GOP Congress refused to allow a Democratic VP to become president by selecting someone else.

The appropriate analogy is if Nixon had died in December 1972 and the Dem controlled Congress had refused to seat Agnew as president-elect, instead selecting McGovern.
 

It's not hard to imagine Democrats rioting in the streets were Palin to become president, or for any number of other reasons. But were the Democrat majority in Congress to take the presidency away from Palin, Prof Levinson is correct we would have a constitutional crisis. I for one would conclude that American constitutional government had ended and that the standing giovernment lacked legitimacy.

So, it only took 5 posts to prove my point. Under the hypothetical under discussion, it would be perfectly Constitutional for the House to choose any of the 3 top finishers, yet here's someone threatening revolution if the House does something within its Constitutional power. I guess the Dems should have reacted that way in 2000.
 

Zachary said ( 4:48 PM ) --
>>>>>> Larry:

Ford became president through constitutional means. <<<<<<

I never said otherwise. I was just responding to the statement, "You might say that we now have a system where an essentially unelected person could become president." I was just pointing out that as a general statement, that statement ignores Ford -- there is no "might" about it.
 

"Under the hypothetical under discussion, it would be perfectly Constitutional for the House to choose any of the 3 top finishers,"

It would be perfectly constitutional ("Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,") for a Republican Congress to refuse to accept as legitimate the election of any Democratic members. I trust, therefore, that you'd be ok with their doing that.
 

Actually, I don't like our presidential system at all. It is a winner-take-all system. Many politicians spend many months campaigning for an office that only one can attain. It is fortunate that the power of the presidency is limited by checks and balances. I much prefer the systems of many foreign countries where the CEO (president, prime minister, premier, or whatever) is chosen by the legislature and can be removed by a vote of no confidence or can resign for personal reasons. When the election of a sectional president, Abraham Lincoln, resulted in secession, we should have scrapped our system then and there. IMO we also need to reform our Supreme Court system. IMO Supreme Court justices should be chosen by lottery from a list of candidates and should serve for a fixed number of years. Judges in lower courts are assigned to different cases by lottery, so why should SC justices be hand-picked by the president and maybe rubber-stamped by a majority party in Congress and then serve for 20-30 years or more? I think that our screwed-up system of government can be fixed only by a constitutional convention.
 

It would be perfectly constitutional ("Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,") for a Republican Congress to refuse to accept as legitimate the election of any Democratic members. I trust, therefore, that you'd be ok with their doing that.

See, now you're doing just what Prof. Levinson urges: look at the hard-wired provisions of the Constitution and see the potential flaws. All these provisions assume some fundamental good faith.

That's what the Republicans have lacked over the last 15 years. Yeah, it's Constitutional to hold the federal budget hostage (or the CA budget, for that matter). It's just not in good faith. Yeah, the CA recall provisions can be abused, but it's not good faith to do so. Yeah, the Supreme Court can throw the election to the Republican candidate, but that's not good faith. Yeah, you can, it turns out, redistrict Texas between censuses, but that's not good faith.

As I pointed out in the other thread, in fact the House can NOT, Constitutionally, vote for the winning VP candidate unless some elector gives her a vote so that she's one of the top 3 vote getters. That's not bad faith in the sense of your example, that's a real defect in the Constitution.
 

All these provisions assume some fundamental good faith.

In computer science, any program that does anything really useful can always be misused by someone who is sufficiently interested in being malicious. This must be even more true of constitutions, or any other sort of contract, as these are far more powerful and complex than anything you can do with a computer.
 

In computer science, any program that does anything really useful can always be misused by someone who is sufficiently interested in being malicious.

I'm sure that's true. Any system of government requires a modicum of good faith in order to continue operating. The Republican leadership gave up good faith quite a while ago.
 

Sandy,

I do think your partisan instincts have gotten the better of you. I am quite willing to wager that if there was no rioting after the Supreme Court effectively ensured that George Bush would be the electoral college winner (despite being the popular voter loser), there will not be rioting in the streets if Sarah Palin becomes president after McCain dies.

On the main point of your post, I admit to being confused on why it matters. Obviously, if McCain dies, there will not be a "permanent" president to replace Palin as "Acting" president. So presumably she would be Acting President for all four years, and everybody will know it, and there is no limit on the powers of an Acting President vis-a-vis a permanent President that I am aware. Presumably, she will be able to appoint a cabinet, sign treaties, etc. etc. The 22nd amendment expressly contemplates that an Acting President may be in office for a good long time.
 

Precedent indicates that a dead nominee is not qualified. Thus, electoral voters for Horace Greeley were not counted in 1872 presidential election. His electors either voted for someone elexse or abstained after attempting to vote for him. The electoral votefor the VP ccandidate in 1812 similarly went elsewhere.
The 20th contemplates that the VP would serve the entire 4 year term.
On the other hand, I'm not sure that anything would affirmatively stop the electors from picking their own relacement. If McCain died, that would probably be Palin, and she would be able to pick her VP later. If Obama died, would it be Biden...or Clinton?
 

Any system of government requires a modicum of good faith in order to continue operating.

I believe that's true.

The Republican leadership gave up good faith quite a while ago.

I'm afraid that's true.

Anyone want to specify when exactly?
 

Suppose someone won in a landslide, which was obviously going to be so big that the other party didn't field a serious candidate, but only a weak straw man. They then die. The electoral college (hopefully) doesn't let anyone win, and the resulting mess is handed off to the House of Representatives to let them come up with a sensible solution, which would likely result in the election of reasonable President and VP, neither of whom were elected.

Presumably the landslide was also for the VP candidate. They are both on the ticket. I don't know why you say that hopefully the House elects someone not on the ticket. Are you assuming that the VP elect died at the same time?

Some recent examples: FDR in 36 (Garner), Ike in 56 (Nixon), Reagan in 84 (Bush Sr.). FDR later died in office, Ike lasted 3 years after his second term, and Reagan was certainly old enough to have died in office.

To take the most recent example, can you imagine Congress refusing to elect Bush Sr. president elect in December 1984 if Reagan died before the electors voted? Certainly there would be more conservative candidates available, many of them preferable to the GOP base. But none of them received the endorsement of the people at large to succeed Reagan as president if he were to die in office.
 

When Mel Carnahan died before election day, his name was still on the ballot and was in fact elected Senator over John Ashcroft. It's not analagous b/c of I guess Missouri state election laws as well as I guess the absence of applicability of a const. amendment, but what happened is Ashcroft didn't object, dead Mel Carnahan won, and I believe the governor (or state legislature ...) appointed Mel's widow Jean Carnahan to the seat, BUT NOT for the whole term, only until the next congressional election 2 years later, if memory serves.
 

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