A somewhat ranting question

Howard M. Wasserman wasserma at fiu.edu
Thu Oct 28 07:11:27 PDT 2004


Re: A somewhat ranting questionAnd I guess if you want to play the conspiracy all the way out, it also makes DeLay Speaker of the House (since Hastert would have to resign his House seat and Speakership).  But the Senate (perhaps with a different majority) is responsible for resolving the Vice Presidency.  So there would be nothing to stop the Senate (not participating in the grand conspiracy) from choosing a Vice President who, with the Presidency vacant, would act as President until the House gets around to resolving the Presidency question.

But this goes to why it is so important to get legislators out of the top of the line of succession.


Howard Wasserman
FIU College of Law
  ----- Original Message ----- 
  From: Sanford Levinson 
  To: Howard M. Wasserman ; Mark Kende ; kimlane at law.upenn.edu 
  Cc: conlawprof at lists.ucla.edu 
  Sent: Thursday, October 28, 2004 10:00 AM
  Subject: RE: A somewhat ranting question


  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 
    To: Mark Kende ; 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 



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    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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