« The Constitution as a Moral Hazard Problem | Main | The complexities of the Senate »

Friday, April 17, 2020

Even more January 20, 2021

Following my posts speculating about the effects of President Trump canceling the elections, David Super (Georgetown) games it out at Politico.

David plays out a few different scenarios than I did, to some interesting conclusions and ideas.

• He begins from the premise that Trump canceled the elections through an unlawful act, as opposed to states being unable to carry out the election because of COVID-19. This creates a greater possibility of a President Biden, because Democratic states are more likely to defy the President and hold elections. But he then says those states would not be sufficient to select a President because they would not equal 270 electoral votes, producing a stalemate. I disagree. The Twelfth Amendment requires someone obtain "a majority of the whole number of electors appointed." If the only elections are in Democratic states totaling (to pick a random number) 211 electoral votes, the President can be elected with 106 votes. He comes back to acknowledge that not someone can be elected with fewer than 270 votes, but having some states fail to appoint electors would cast a "cloud" over the process.

• David floats the idea that the current House could continue beyond January 3, despite the 20th Amendment. He argues that the availability of successors is an implied condition on the past Congress ending and that the most recently elected representatives could legitimately continue to serve, when the election was prevented by someone else's malfeasance. I am not sure I buy the argument. But it takes us down the road to a House contingency election (if no one gets an Electoral College majority) that could produce a 26-22 victory for Trump, given the split in state delegations. This could be confounded by the defying (Democratic) states electing some new members and perhaps changing the make-up of their state delegations.

• He argues that the rump Senate of 65 (if no new Senators are elected) may be unable to sit or select a President for lack of a quorum. He also gets a 51-49 Senate through new appointments. But, as I said in my first post, three states do not allow for appointments and North Carolina requires that the appointee be from the same party as the past seat-holder, which produces a 50-47 Republican Senate.

• He introduces an interesting wrinkle if we get into § 19 and the cabinet: § 19(e) states that a cabinet officer under impeachment at the time of the vacancy cannot act as president. A Democratic-controlled House could manipulate who becomes acting president by impeaching cabinet officers, especially those who they deemed complicit in Trump's cancellation of the elections. David puts it this way: "Democrats enjoy debating which Trump Cabinet member they think is worst; this could force them to decide which one they find most tolerable."

Posted by Howard Wasserman on April 17, 2020 at 08:38 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


i think we would have dissolved to shadow governments and civil war.

Posted by: پوکر آنلاین | Apr 24, 2020 8:36:51 AM

At least with respect to Howard's initial post, I had no problem with it despite such events being unlikely, because it could be written as a purely academic post. I would feel differently if, say, someone wrote even a "good" (in the sense of intelligent and informed) piece about the issue, but in a way that was implicitly or explicitly alarmist and treated it as a pressing or likely issue, thus effectively pushing it as a political issue whether it's likely or not, and if they did so for a general audience that might treat the issue as highly present and likely because the piece is written by an "expert." (I haven't read the Politico piece--I rarely read Politico, and only news stories--so I can't say whether the piece there meets such a description or not.)

"More important issues to discuss" has never, I think, been a selection criterion for blog posts here. (If nothing else, the fact that we run a lot of posts about academia should indicate that.) I think most of us write about what we're interested in or tickled by, whether it's the "most important" issue facing us or not. If we were a newspaper we might have different criteria for publication.

Posted by: Paul Horwitz | Apr 19, 2020 12:27:38 PM

There is no evidence this is going to happen. There are a lot more important things to discuss.

Posted by: sam tenenbaum | Apr 18, 2020 7:00:36 PM

honestly, if it gets to this part, i think we would have dissolved to shadow governments and civil war. still interesting, though.

Posted by: thegreatdisappointment | Apr 18, 2020 5:33:12 PM

Post a comment