A somewhat ranting question

[Sanford Levinson]

So this suggests, in case of a disputed election, that the optimal
strategy for Tom DeLay is to delay (pun intended) any resolution, so
that his puppet Dennis Hastert could become President of the United
States.  How legitimate would that be?
(I presume that DeLay would rather have his puppet Hastert as president
than a lame-duck Bush who might, surprisingly, show a modicum of
independence from DeLay's fascist thuggery.)
 
sandy

________________________________

From: Howard M. Wasserman [mailto:wasserma at fiu.edu] 
Sent: Thursday, October 28, 2004 8:56 AM
To: Sanford Levinson; Mark Kende; kimlane at law.upenn.edu
Cc: conlawprof at lists.ucla.edu
Subject: Re: A somewhat ranting question


I do not think there is any way that Bush (or Adams in the earlier
situation) could simply remain in office.  The Constitution (buttressed
by the 20th Amendment) is clear about when the President's (and Vice
President's) term ends--noon on January 20.  The absence of a new duly
elected President would trigger the Presidential Succession Act,
devolving power to the Speaker, President Pro Tem, then to the old
Cabinet members who have not yet resigned and whose terms in office
continue even past the term of the President who appointed them.
Remember, if re-elected Bush technically does not remain President; he
is sworn in anew on January 20 to begin a distinct term as President.
If the electoral process has not been resolved, how could the Chief
Justice swear him in?
 
This touches on one of the concerns among those seeking to amend the
Presidential Succession Act -- the absence of a qualifying, living, and
able President at noon on January 20 would mean that the Secretary of
State from the old administration (or worse, the acting Secretary)
becomes acting president for some period.  Of course, if the situation
(as Greg proposes) is that no one is yet sure who should be the new
President, having an existing Cabinet secretary act until we can get
everything in the electoral process sorted out may not be a bad idea.
 
 
Howard Wasserman
FIU College of Law

	----- Original Message ----- 
	From: Sanford Levinson <mailto:SLevinson at law.utexas.edu>  
	To: Mark Kende <mailto:kendem at selway.umt.edu>  ;
kimlane at law.upenn.edu 
	Cc: conlawprof at lists.ucla.edu 
	Sent: Thursday, October 28, 2004 12:20 AM
	Subject: RE: A somewhat ranting question

	As I recall, Bruce Ackerman has suggested that one Federalist
thought in 1801 was to deny Jefferson election and then, after March 4
arrived, give the presidency to John Marshall, who, as Secretary of
State was next in line re the Succession in Office Act.  Interestingly
enogh, there was apparently no suggestion that Adams should remain in
office.
	
	sandy 

________________________________

	From: conlawprof-bounces at lists.ucla.edu on behalf of Mark Kende
	Sent: Wed 10/27/2004 4:38 PM
	To: kimlane at law.upenn.edu
	Cc: conlawprof at lists.ucla.edu
	Subject: Re: A somewhat ranting question
	
	

	To put a perhaps strange twist on Greg Sisk's hypo, what would
happen
	if Bush won the popular vote but seemed to lose the electoral
college
	count on election day based on highly disputed vote counts that
Bush
	decided to litigate? Is there any scenario one could see where
he
	might insist on staying in office, as the litigation continued,
based
	on his certainty that he was right? Obviously there are
statutory
	provisions and constitutional provisions that deal with
electoral
	college problems, but they put the issue generally into Congress
	which is Republican controlled. After all, one difference
between
	this year and last is that the incumbent President who, in a
sense,
	controls the machinery of government is running this time.  And
	President Bush is well known for believing strongly in the
	correctness of his positions. My more reasonable side suggests
	that "statesmanship" would prevail in the end but would there be
any
	recourse for the other side if such strange events took place
(other
	than secession...).  Mark
	
	Mark Kende
	James Madison Chair in Constitutional Law
	Drake Law School
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