20th Amendment Trivia

[Josh Chafetz]

The use of "qualify" seems to me to be an intentional echo of the Art. I, sec. 5 power of each house to judge the qualifications of its members.  The Court held-correctly, in my view-in Powell v. McCormack, 395 U.S. 486, 521-22 (1969), that the houses' power of judging qualifications extended to age, residency, and citizenship, and perhaps also to not having been convicted in impeachment proceedings and disqualified from further office (Art. I, sec. 3, cl. 7), not holding an office of trust or profit under the United States (Art. I, sec. 6, cl. 2), not having engaged in insurrection or rebellion against the United States after having taken an oath of allegiance to the United States (see amend. XIV, sec. 3), not being the representative of a state lacking a republican form of government (Art. IV), and not taking the oath of office (Art. VI, cl. 3).

I take it, then, that this provision of the Twentieth Amendment refers to the age, residency, and citizenship requirements of Art. II, sec. 1, cl. 5, as well as the oath requirement of Art. II, sec. 1, cl. 8.  If you think that the President is an officer under the United States, then a President-elect could fail to qualify by having been impeached and disqualified, or by engaging in insurrection or rebellion against the United States or giving aid or comfort to the enemies thereof, having previously taken an oath to support the Constitution.  (I happen to think that the President is an officer under the United States, but some think otherwise.  See, e.g., Seth Tillman's argument here:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1099355 .)

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Josh Chafetz
Assistant Professor of Law
Cornell Law School
238 Myron Taylor Hall
Ithaca, NY  14853
607-255-1698
josh-chafetz at lawschool.cornell.edu<mailto:josh-chafetz at lawschool.cornell.edu>

________________________________
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Monday, November 10, 2008 2:44 PM
To: Conlawprof at lists.ucla.edu
Subject: 20th Amendment Trivia


The 20th Amendment (1933) (full text below) provides in part as follows:   "If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified."

How or under what circumstances would a President-elect (or Vice President-elect) "fail to qualify"?  Noncompliance with the citizenship and age requirements?  Refusal to take the oath?  What else could the drafters of the 20th Am. have had in mind?  What am I missing here?

Dan Conkle
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Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
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The 20th Amendment provides in full as follows:

1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
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