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Friday, December 08, 2023

Presidential Quo Warranto

Suppose we discovered tomorrow that President Biden is actually less than 35 years old. (I know, I know). How can an ineligible President be removed? Right now, there are two options: (1) impeachment and (2) the 25th Amendment. Both of these are hard to implement. Is there no other way?

During the 1876 presidential election fiasco, Congressman David Dudley Field proposed legislation to establish a federal quo warranto remedy that might have let courts remove an ineligible President. Field was Justice Stephen Field's brother and was responsible for the codification movement that swept many states during the 19th century. He explained that that his bill would allow the federal courts to provide a "remedy for a wrongful intrusion into the office of President or Vice-President." Field was focused on election fraud, though he mentioned that the presidential electors themselves could be ineligible. (There were accusations in 1876 that a few presidential electors were ineligible under Section 3.)

Field then explained that there was a precedent. He said "there now stands upon the statute-book authority for a quo warranto . . . a quo warranto to try the title to the presidency--in cases arising under the Fourteenth Amendment." He then quoted the language:

"Jurisdiction is given to the circuit courts of all suits to recover possession of any office except that of elector of President and Vice-President, or Representative or Delegate in Congress, or member of a State Legislature, where the sole question arises out of the denial of the right to vote on account of race, color, or previous condition of servitude."

Why did Field think that that this statute covered the presidency? Because it said "any office." (This is, of course, similar to what Section 3 of the Fourteenth Amendment says.)

What Field did not say is whether quo warranto could remove a President or only a President-elect. You can distinguish those positions, and Field did not discuss impeachment at all. It's an interesting hypothetical/exam question.


Posted by Gerard Magliocca on December 8, 2023 at 07:47 AM | Permalink


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