This article was in my local Sunday paper yesterday. Thoughts?
Dick Cheney, the next president?
November 2, 2008
By Alexander Belenky
The 2008 presidential election campaign is close to an end. Numerous polls still predict a close race, and the media are discussing all possible outcomes.
A 269-269 electoral vote tie is one such outcome, and if it happens, unclear existing election rules may either cause a constitutional crisis or make the current vice president Dick Cheney the next president.
In the event of an electoral tie, if the election rules remain as they are, the newly elected Congress is slated to count electoral votes on Jan. 6, 2009.
The House of Representatives would vote for president, and the Senate would vote for vice president. House rules for electing a president have remained unchanged since 1825, though each new Congress can set new rules. Each state has one vote (regardless of its size), a quorum of two-thirds of 50 states is needed to start the balloting, and, if the rules stay as they are, an evenly divided state delegation cannot cast a ballot. Under certain compositions of the newly elected House, it may fail to elect a president by Inauguration Day under the 1825 rules.
Electing a vice president in the Senate by Inauguration Day could be unsuccessful as well, since the 2009 Senate may be evenly divided. The absence of a single senator, say, due to health reasons, may result in neither of the two vice presidential candidates receiving 51 votes. Thus, even if the seated vice president (who is not a senator, but serves as president of the Senate) can break a tie in choosing a new vice president in the Senate, which has remained questionable since the ratification of the 12th Amendment in 1804, at least 51 Senate votes are needed to elect a new vice president anyway.
In an ABC report of July 17, J. Fortier, an American Enterprise Institute scholar, said that the Presidential Succession Act of 1947 governs the situation. L. Sabato, a professor at the University of Virginia, has recently offered the same view.
However, the language of the text of Sec. 3 of the 20th Amendment calls this view into question.
The Presidential Succession Act was enacted under the authority of the 20th Amendment of the Constitution. The act outlines procedures for filling the office of president in only five situations in which there is no one "to discharge the powers and duties of the office of President." One such situation is "failure to qualify," and the amendment authorizes the Congress to invoke the Presidential Succession Act only when "neither a President-elect nor a Vice President-elect shall have qualified."
The American Heritage Dictionary of English Language defines "to qualify" as a) "to be successful in one stage of the competition and as a result to proceed to the next stage," and b) to have the abilities required to do or to have something. Other dictionaries offer similar definitions such as a) to reach the later stages of a selection process or contest by competing successfully in earlier rounds and b) to be or to become qualified.The question is: which sense of "to qualify" were the Amendment sponsors after?
If it is "to be successful in one stage of the competition and as a result to proceed to the next stage" then the act is applicable only when neither a president-elect nor a vice president-elect is chosen by Inauguration Day either by the Electoral College or by Congress.
If it is to have the abilities required to do or to have something, then the act is applicable only when both a president-elect and a vice president-elect have been chosen either by the Electoral College or by Congress, but the chosen individuals have failed to qualify as president and as vice president, respectively, since they have not met the constitutional requirements to be eligible to be elected to the offices.
No matter what the interpretation of the phrase "neither a President-elect nor a Vice President-elect shall have qualified" employed in the text of Section 3 of the 20th Amendment should be, it can be either definition a) or b), but not both.
This means that the act is applicable only when either a president-elect and a vice president-elect are not chosen by Inauguration Day, or only when both a president-elect and a vice president-elect were chosen but failed to qualify.
In contrast, the phrase "when neither a president nor a vice president shall have qualified" would cover both cases, and the phrase "until a President shall have qualified" is employed in the text of the 20th Amendment to cover the situation in which either a president has not been chosen before Inauguration Day, or the president-elect has failed to qualify. The use of this phrase in this part of the Constitution suggests that the phrase "when neither a president nor a vice president shall have qualified" may better reflect the intent of the amendment sponsors.
Yet, the language employed there seems to limit the number of cases covered by the amendment to only one of the cases a) or b), and it's unclear which one.
The authors of "Understanding the Constitution," a textbook for law schools, say that "Congress now made the same provision for succession in the event of disability or disqualification of the President-elect and Vice President-elect as in the case of President and Vice President." The author of "A Detailed Analysis of the Constitution" states that "Section 3 of the Twentieth Amendment empowers Congress to provide for the situation when neither the President-elect nor Vice President-elect qualifies." The use of the article "the" in "the President-elect and Vice President-elect" makes it appear that both books support case b), which defines "to qualify" as a matter of competence.
In explaining the 20th Amendment, the Web site Justice Learning states, "If the president is not able to hold office, the vice president will act as president. The 20th Amendment gives Congress the power to pass legislation outlining a more detailed succession plan if the vice president is also not able to carry out the presidential duties until a new president and vice president are qualified." This also seems to support the competency definition.
However, only the U.S. Supreme Court may decide whether the Presidential Succession Act is applicable in case a) or in case b). If the court finds the act to be inapplicable in case a), when neither a president nor a vice president has been chosen by Inauguration Day, only the 12th Amendment may then govern the completion of the election.
According to the 12th Amendment, "the vice president" then becomes the new president.
If the U.S. Supreme Court decides that "the vice president" is the newly elected vice president, an election stalemate is inevitable. There are no constitutional provisions or federal statutes determining who should act as the next president in this case and consequently the election process cannot be completed.
If the court decides that "the vice president" is the acting president, a constitutional crisis will be avoided. In the case of the 2008 election, this would mean that Dick Cheney would be sworn in as the 44th U.S. president on Jan. 20, 2009.
If the court finds that the Presidential Succession Act is applicable in case a), then if the president-elect and vice president-elect have been chosen but has been disqualified, only the acting vice president may potentially act as president and only if the Court clarifies that "the Vice President" mentioned in the 12th Amendment is the acting vice president. Otherwise, a constitutional crisis is inevitable.
Covering (only) case b) by the Presidential Succession Act looks like the lesser evil, since if case a) should occur, either chamber or Congress or both still may eventually produce either the president-elect or the vice president-elect or both before the next election (though after Inauguration Day). In contrast, if the act covers (only) case a), installing the acting vice president as president until the next election is the only alternative to a constitutional crisis should case b) emerge.
Let's assume that the U.S. Supreme Court determines that "the Vice President," mentioned in the 12th Amendment, is the acting one. Then in the event that Congress had been unable to choose a president from 1804 to 1933, (before passage of the 20th Amendment), under the 12th Amendment, the acting vice president would have been the next president, even if a vice president-elect was available.
Finally, if the U.S. Supreme Court finds that only one scenario a) or b)is covered by the Presidential Succession Act, the language employed in the 20th Amendment is such that it leaves unclear whether the act applies when only one of the two executives is chosen in the election but fails to have qualified by Inauguration Day.
Alexander S. Belenky is a Ph.D. in systems analysis and applied mathematics and visiting scholar at MIT's Center for Engineering Systems Fundamentals. He is the author of the books "Extreme Outcomes of U.S. Presidential Elections," "Winning the U.S. Presidency: Rules of the Game and Playing by the Rules," and "How America Chooses Its Presidents."
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i feel that BUSH could be sent packing before this JANUARY!!! (our 15 bear days and our 5 bull days out of 20 happy days has scrapped my 269 v 269 dead heat on a merry-go-round previous and prior scenario) WALL STREET IS AT A BOTTOM!
Originally Posted by Aratus
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