Sunday, February 24, 2019

AOC and Constitutional Workarounds: A Frivolous (?) Analysis

Mark Tushnet

On Saturday the Washington Post published its update on the race for the Democratic nomination. The top three are Harris, Sanders, and Warren. Assume (as I think likely) that AOC might well displace one or more of those were she to be a candidate. But, "of course," she can't be a candidate because she won't have "attained to the Age of thirty five Years" by January 2021.

Why the scare quotes? Maybe there's a workaround she could use. Suppose she found a loyal but pretty schlumpy supporter, Joe or Jane Smith, who's thirty-six years old and living in an apartment in Brooklyn while working as a barista at (why not?) Starbucks. AOC and Smith announce that Smith is running for President on a platform with a single but broad plank: If elected Smith will appoint AOC White House Chief of Staff and do whatever she says on everything other than the purely formal things a president has to do (physically signing bills and pardons, receiving ambassadors, and the like). Suppose Smith wins the election and follows through on the platform's pledge. Is there anything constitutionally impermissible here?

Would following through on the pledge violate Smith's oath of office? Would delegating everything other than the purely formal roles of the president amount to a failure to "faithfully execute the Office of the President," for example? (I think it would take a fairly elaborate argument to explain why this delegation might be a violation of the oath while others, well-settled in practice, aren't.)

Isn't this violating "the spirit" if not the letter of the age requirement? Once we're in "spirit" or policy-land, though, the counterargument is straight-forward: The age requirement is an admittedly imperfect proxy for substantive qualifications like experience, etc. With the letter of the law satisfied we can argue about AOC's substantive qualifications.

Obviously practical questions might arise. The most interesting of those I've been able to think of are these: Maybe Smith would find the lure of power so intoxicating that s/he would break the pledge and actually try to do some of the president-ing. Or maybe AOC's supporters would decide not to vote for Smith/AOC because of that possibility. (That's why AOC should -- in this imaginary world -- pick a complete nonentity as her Smith. And, note that the risk-averse AOC supporters would have to think that she made a mistake in picking this particular Smith.) Or maybe a number worth worrying about of AOC's supporters wouldn't get the message that voting for Smith was really voting for AOC.

There are less interesting practical issues. Smith doesn't actually campaign -- just stays in the apartment and goes to work every day; AOC is the one out campaigning. Does Smith or AOC get Secret Service protection? (I'd have to read the relevant statutes and regulations, but I'd bet that they are susceptible of a reading that would allow the Secret Service to protect either or both [Smith on the theory that assassinating Smith is the kind of threat to elections that Secret Service protection is designed to guard against].) The "State of the Union" clause doesn't require an in-person delivery of the information, and even if practice has developed into a convention that an in-person presentation is required, maybe the "Smith" State of the Union address would be like the Queen's Speech opening parliament -- a recitation by Smith of words written by AOC.

What about candidate debates? Well, either AOC is invited to participate or Smith is. If the latter, to every question Smith responds, "Beats me. You should ask AOC because she's the one who's going to be doing the president-ing." (For a brilliant execution of a similar strategy, see this candidate debate.) [If AOC actually polls well, I would expect the organizers of the candidate debates to ignore the fact that Smith doesn't poll well in her/his own name. If they didn't I expect they'd face a lot of criticism for rigging the system.]

The Constitution's age requirements are routinely cited as provisions that can't be evaded by creative interpretation. Can they be worked around?

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