If Line of Succession is Illegitimate (Provide Ideas for a Solution)

[Fantastic Anarchist]

The below was a reply to another thread, but I thought I'd start a thread to solicit ideas for a solution since, I believe, there is no Constitutional remedy for an election that is itself illegitimate. I'd love to hear some other's thoughts.

If the election itself is illegitimate, then it follows that, the Line of Succession is illegitimate. Even if Pence and everyone on down the line are innocent, the Line of Succession is illegitimate, regardless of the legal status of anyone in the line. This is unchartered territory, and there is nothing in the Constitution, that I can quickly recall, perhaps I'm wrong, that provides guidance for a foreign state basically picking our President over the will of the People. Since there is no Constitutional Remedy, we really have no quick fix for this. I don't claim to have answers. I would propose several solutions:

1) The Presidency goes to the runner-up and winner of the popular vote.

2) Hold new special elections.

3) Congress creates a select bipartisan committee to choose the President.

4) Hold another Electoral College vote in states where the winner won by less than a certain percentage - say, 3% or less (or a percentage to be determined)

Edit to provide link to corresponding thread.

[gibraltar72]

1. Pence is not

innocent. Rachel started working on him last night. That is the next battle. He is as dirty as the rest. He had to have known about Flynn. He lead the transition team!

[Fantastic Anarchist]

3. I agree. My point was even if he was innocent, it's still not valid.

Either way, he should not be President. But yes, I agree, he's guilty as hell, too.

[NCjack]

49. I believe that he will resign rather than go thru an investigation. n/t

[longship]

2. There's no way to do that.

And ex post facto laws are specifically forbidden in the constitution -- twice, in fact!

[Fantastic Anarchist]

5. I'm not asking to propose legislation (well, to prevent future attempts).

This would have to be done by Congressional Committees or some other organized body. This is, for lack of a better word, more procedural than legislative.

I don't claim to have all the answers, or have details. I'm just providing ideas. I'd be interested in hearing what you would like, think possible, to happen.

[longship]

22. It would take a constitutional amendment.

That isnt going to happen under the current congress and state legislatures.

[Fantastic Anarchist]

27. Why? My opinions involve procedural steps for a solution.

The USSC had no precedent to intervene in the Election of 2000. There was no Constitutional remedy or amendment made then. I think you are basing this on the assumption that the Constitution can provide a solution to this. My assumption doesn't. We are in un-chartered territory. Assuming that my opinion is correct, then it would be up to Congress or some other specialized body to come up with a solution.

I know it's a long shot. I'm only trying to solicit other ideas for solutions. Your posts are fine, and I think we're having a nice discussion, but the point of my post was and is that we cannot rely on the Constitution for a solution.

[longship]

29. The constitution specifically says how to elect a president.

There are no do-overs in the constitution.

The only way to get rid of Drumpf is impeachment and trial, the 25th amendment, resignation, or death.

Then we get Pence as POTUS.

[Fantastic Anarchist]

30. Okay, thanks for your opinion.

I just can't deal with you being obtuse anymore. You are completely missing my point, and it appears willfully doing so.

You win. Thanks.

[longship]

31. Obtuse? Read your damned constitution! nt

[Fantastic Anarchist]

41. I have read it.

And there is nothing provided for an election that has been meddled in by a Foreign Adversary.

[Iggo]

43. Exactly. "Nothing provided for."

And so we revert back to the things that ARE provided for.

[Fantastic Anarchist]

45. Which would be a new election ...

[Jim Lane]

54. Sorry, but that doesn't follow.

The Constitution says the President's term is four years. You're right that it doesn't say "and we mean four years, and you can't cut it short just because there was foreign interference or because the President concealed the extent of his polio-induced paralysis or because your astrologer recommends it or ...." But the absence of that language doesn't mean you can improvise.

There's a legal principle that long predates Donald Trump's birth: Expressio unius est exclusio alterius, meaning that the express mention of one thing excludes all others. Given that the Constitution provides that a President's four-year term can be cut short against his or her will through impeachment or through the Twenty-Fifth Amendment, established principles of construction mean that it can't be cut short in any other way.

With a normal statute, it often happens that some totally unforeseen circumstance arises. The statute produces a bad result. The remedy is to amend the statute, which requires only a majority in each house plus the President's signature.

When a provision of the Constitution is found to have that kind of problem, matters are more difficult, because of the difficulty of enacting an amendment. One example I can think of is the Eleventh Amendment. The Constitution didn't expressly bar citizens of one state from suing the government of another state in federal court. The Framers hadn't thought about this because everyone assumed that such a suit would not be permitted. In 1793, however, soon after the adoption of the Constitution, the Supreme Court held that such suits were proper. The amendment process geared up with notable rapidity, especially given that state legislatures back then held only short and infrequent sessions. The amendment passed the Senate by 23-2 and the House by 81-9, and the ratification process was complete less than a year later.

The point is that there was no way to deal with this unexpected circumstance other than through a Constitutional amendment. A government loaded with people who had written the Constitution realized that. It's simply not "obtuse" for people to tell you that the answer is the same here.

[brooklynite]

55. No, it would be a four year term for the winning candidate...

...absent death resignation, impeachment, or removal under the 25th Amendment.

[Iggo]

61. No.

We'd revert to the things that are provided for, which are impeachment, 25th amendment, resignation, death.

[longship]

66. That's right!

And since there's also nothing in there about do-overs, Mulligans, second chances or nullification of presidential elections that means what some are suggesting here is unconstitutional.

You want Drumpf out of office? He can constitutionally leave office by four methods.

1. Impeachment and trial.
2. Being found incapable under the 25th amendment.
3. Resigning.
4. Dying in office.

That's it. No magic do-overs. No make-a-wish.

We live in a constitutional republic. I like that, in spite of recent events which are pretty sucky.

We have to work within the system we have, not some magic kingdom where things are any way somebody wishes.

[obamanut2012]

46. Except Longship is right

If it isn't in the Constitution, then we cannot do it, not when it already tells us how to do it.

[mythology]

36. So you're asking to ignore the law and make shit up as we go

This is to be charitable a really bad idea.

[Fantastic Anarchist]

42. No, I'm not asking to "make up shit" ...

There's nothing in the Constitution that provides for an Election that was manipulated by a Foreign Adversary. As such, the responsibility falls on Congress provide a procedural remedy. Whether Congress takes on the solution, or proposes a special select committee is up to them. Also, that's not the only idea that I've proposed. There are three other ideas I provided in the OP.

[ChoppinBroccoli]

20. That's Both True And Not True

Ex Post Facto laws are forbidden, but usually only in cases of criminal law. There have been MANY retroactive laws passed in this country that were perfectly Constitutional. I think we just had one in the last few years, but it escapes my memory. Wasn't there an element of retroactivity involved in the same-sex marriage legislation that was being proposed in certain States prior to the Supreme Court ruling it Constitutional nationwide? Here in Ohio, there was a law passed regarding registration of sex offenders that had retroactive language in it.

I don't think legislation to remedy this particular situation would have to be retroactive. I would approach it just like the procedures for recall elections that most States have in place. Put it in place, then call for a recall. It doesn't have to be retroactive.

[Tommy_Carcetti]

4. The blue fairy waives her magic wand?

/revision/latest?cb=20120229025202

I'd love nothing more to rid ourselves of what happened in November 2016.

Bottom line is, we can't.

I think realistically the most we can expect is that Trump gets knocked out of there. I know the desire is strong for a Trump-Pence two-fer, but nothing yet has come to light that definitively places Pence in the heart of all this, and honestly Republicans willing to forsake party lines to impeach Trump would probably less inclined to do so for Pence.

If somehow we do get a Trump-Pence two-fer, then we get President Ryan. And I know fantasies have us wrapping up Ryan in all of this too (maybe something to do with Nunes) and we somehow get a Trump-Pence-Ryan trifecta, but that's even more complicated.

And say we do have a Trump-Pence-Ryan trifecta (which would have to consider two different mechanisms almost simultaneously, impeachment for Trump and Pence, and expulsion for Ryan), then what? President Orrin Hatch? That would actually be somewhat hilarious just due to the absolute randomness of it all, plus the fact the President's name is Orrin Hatch.

But honestly, what we can expect, rather unfortunately, is President Pence. But the upside is that President Pence will be severely hampered and forever associated with Donald Trump, something that we can and should use to full potential in 2018 and 2020.

[Fantastic Anarchist]

7. Sorry, was just trying to brainstorm for solutions ...

[FSogol]

9. I called DO-OVER!

[DaleFromWPB]

6. Oh geez ... another shouting at the clouds thread

Okay, let's go item by item

1. If the election itself is illegitimate -- It's not. It was conducted in accordance with the constitution. The fifty states held elections, selected a slate of electors, which were then confirmed by the Congress.

2. Line of Succession is illegitimate -- No, it isn't. The Line of Succession is laid out in the Constitution.

3. a foreign state basically picking our President over the will of the People -- Simply didn't happen. You MIGHT be able to argue that a foreign state 'influenced' voters but not that they picked our president. Real live people voted the way they did using whatever criteria they chose.

4. The Presidency goes to the runner-up and winner of the popular vote. -- Absolutely no way to justify this using the Constitution. All of the talk about the popular vote is a huge distraction -- It DOESN'T MATTER!

5. Hold new special elections -- We will, In Nov 2018 and Nov 2020. No mention of a Do-over in the constitution.

6. Congress creates a select bipartisan committee to choose the President -- Only slightly less crazy than #5. If Trump leaves office (impeachment, 25 amendment, resignation, or death) congress has to approve a new VP for Pence.

7. Hold another Electoral College vote in states where the winner won by less than a certain percentage -- There will no new elections, No Make-ups, No Do-overs, No Rain-date, No Try-again, No one-more-chance.

It is done and Final. There are four ways Trump leaves office before Jan 20, 2021 -- impeachment, 25 amendment, resignation, or death. PERIOD, the END.

We need to focus on drawing a contrast between the parties and saddling every Republican with Trumps polices, tweets, and missteps.

My top five issues for us to focus on:
Legalizing Marijuana nationwide
Resolving the student loan crisis
Getting ID's to all voters affected by restrictive laws
Rebuilding roads and bridges
Harnessing the energy seen in the recent protests

The wailing and gnashing of teeth accomplishes nothing.

[Fantastic Anarchist]

11. This is a message board where people exchange ideas and opinions.

If you don't like my post, you didn't have to respond. You didn't have to be nasty about it. I provided an opinion and ideas for solutions. You may not like them, but you make the assumption that there is only a Constitutional remedy to this. I don't make that assumption. Your points are opinions, as well, and that's fine, but you didn't have to come across as an asshole.

And we can focus on issues, too. Why do you assume that government can only do one thing at a time instead of doing things simultaneously?

"Oh geez" indeed.

[DemocratSinceBirth]

13. Unfortunately if Trump is impeached we get Pence.

Their ultimate punishment is at the ballot box.

[Act_of_Reparation]

48. Pro-tip:

Not all opinions are created equal.

[Fantastic Anarchist]

65. And water is wet ...

...so, what's your point? Are we just stating obvious things now?

[rock]

35. I believe you're wrong on all points

So I'm going to pass on any discussion.

[BainsBane]

8. The Constitution establishes a clear line of succession

Whether you consider it illegitimate or not isn't relevant to the actual outcome.

[Shrek]

10. Actually the line of succession is statutory

https://www.law.cornell.edu/uscode/text/3/19

The constitution only mentions the VP and leaves the rest of it up to congress.

[Fantastic Anarchist]

12. You must have missed the part where I said this was my opinion.

And no, the Constitution doesn't provide any guidance for an election that was hacked. It does provide for a LoS assuming that an election was valid (and is statutory as Shrek correctly pointed out).

We are in uncharted territory.

This is my opinion. I provided possible solutions.

[BainsBane]

14. As much as we all might wish DU could resolve the current situation

It's not going to happen.

[Fantastic Anarchist]

15. I don't think that DU can resolve the situation.

Wow, why are you throwing out red herrings? Did I piss you off or something?

I'm expressing my opinion, and asked others for their opinions for a solution to this crisis. You have the right to post here and be as cynical as you want to be ... but I'm just wondering why you really care enough to try to throw this thread off the track into irrelevant territory.

[BainsBane]

16. Why?

The fantasy stuff disturbs me. I was and remain devastated by the outcome of the fall election. I am sicked by what Trump is doing. But I find false hope painful. We can't redo the election. I wish it were possible more than just about anything, but I know it's not.

[Fantastic Anarchist]

21. It's fantasy to you because you make it fantasy.

I don't believe that this is fantasy.

I can't do anything about you being negative in my thread, but I can suggest that you try not to be.

"Be realistic! Demand the impossible!" ~ 1968 Paris Anarchists

[drm604]

17. It would follow the line of succession to someone willing and able to take office.

Elections are state issues. The states selected their electors. Congress decides whether to accept or reject those electors, and they've already accepted them. If any of the electors were illegitimate, it's past the time to do anything about it. That barn door is open and the horses are long gone.

As far as I can see, the election is constitutionally legitimate. I don't like it. Our system sucks. But there it is.

The only remedy is for Congress to impeach and then we follow the line of succession until we find someone willing and not in prison.

[AngryAmish]

18. Consitution Convention and allow succession

[DaleFromWPB]

19. Bad time for a Constitutional Convention

The Republicans are close to having control of 2/3s of the states.

We could see:
Re-Criminalization of Marijuana
English as the national language
Nationwide voter ID laws
Nationwide Open/concealed carry (I'm okay with that one)
Prayer in schools

There is no way we can support a Constitutional Convention when we control so few state governments.

[AngryAmish]

25. They would be glad to let the blue states go

We should go.

[delisen]

23. This is a useful thread. Ultimately the demand of the people for justice

will greatly influence the outcome.

The Constitution is a tool for justice.

On the Constitution providing for a line of succession. It is useful to remember that Agnew resigned as part of a plea bargain and that politics was involved, and that both the president and congress were involved in deciding which particular person would become VP. It was Ford but it could have been someone else.

Today much depends upon the demand of the people for justice, how tainted Trump, Pence, and the Republican Party and its leadership has been involved in the corruption of the 2016 election.

[Fantastic Anarchist]

24. Please feel free to recommend for visibility ...

... it only has two as of this post, yet there's a lot of good discussion in here.

[KittyWampus]

26. VP is removed for acceptable moderate. POTUS removed & moderate VP installed. Then next VP selected

and confirmed.

In this scenario both VP's need Congressional majority.

[Fantastic Anarchist]

28. This is a really good idea!

I think your idea provides for the least amount of people thinking they got gipped. Great post, Kitty! Thank you!



Edit to add: What do you think about majority vs. super-majority? You have any ideas on the advantages and disadvantages for either or both?

[DaleFromWPB]

37. This is the only even remotely possible scenario

But with a Republican congress and cabinet, it will take some serious involvement of Pence in the Flynn situation to make that happen.

Then ousting Trump would be an even larger task. Possible but unlikely.
I think it's more likely that he get frustrated with congress and resign to "keep his businesses' going.

We can't keep wasting time and energy on fool's errands.

We need to mobilize and capture the hearts and minds of the many unhappy people - then turn that into action at the polls in Nov 2018 and 2020.

[Bernardo de La Paz]

68. Not a solution. Republicon majority means that the Republcon ticket retains VP & Presidency.

[still_one]

32. The Constitution does not provide for that. The Democrats should block any SC nominations

until the next Presidential election.

[SticksnStones]

33. Regain control of the house and senate in 2018

Have dem controlled house name anyone they want as speaker.

Impeach and then remove - based on (forthcoming) unquestionable evidence of collusion and corruption and coverup - both the president and VP simultaneously. An extraordinary move but these are extraordinary times. And this is not unconstitutional. Although it is a long hard haul.

A constitutionally correct way to not hand the White House over to the republicans as a reward for being corrupt.

[vlyons]

34. If Pence and Ryan also go down

The House will select another speaker, who will then advance to the presidency, leaving the House to select the next speaker again. No matter what happens, we will have a constitutional crisis with one or more lawsuits to be resolved by SCOTUS. The chaos will be so great if Trump goes down that I seriously doubt that the majority of Americans can stomach trying to also take down Pence and Ryan. If Pence skirts free, his presidency will be doomed to only the remainder of his tenure. He will be a lame duck from day 1.

[L. Coyote]

38. Reset the clock to pre-inaugration. Obama resigns to meet Constitutional term limit, Biden is in

until a special election is carried out. Any and all action taken since inauguration are null and voided. Obama administration returns to DC to clean up the mess the Russians left during the occupation.

[DaleFromWPB]

39. Absolutely no way for this to happen

No way to reset the clock
No way for PBO appointees to return to their positions
No way for Biden to serve a minute after noon on Jan 20th

No way the Trump voters would allow that to happen, and remember there were 63 million of them.

[L. Coyote]

40. There is a way, I've seen it happen before, even been a part of it once.

But, I hope we won't need an overthrow and law by decree here.

It sure was convenient though to be able to rule by decree when I worked under a military dictatorship. Not so convenient for the ex-President to be flown out of the country in his pajamas though. Make a decision and just say "Make it so" and it is done, no messy debate or voting or anything like that. I returned after 20 years and found that my decisions under the regime had survived into the democratic restoration, the Native American reservations I created in the Amazon were intact. I had not even put pen to paper, I just said it was to be so and told everyone where the boundaries were. Without a dictatorship, it wouldn't have been possible.

[Fantastic Anarchist]

44. This is a good idea, as well.

Biden could act as interim-President until a special election can be held.

[hughee99]

47. I'm think there's still not a precedent for a foreign

State picking our president over the will of the people.

[leftstreet]

50. A foreign state didn't 'pick' the President

The GOP chose Trump

Some people voted for him

He lost the popular vote but gained the electoral votes he needed to win

[hughee99]

63. I agree with you. This is the OP's characterization of what happened.

"This is unchartered territory, and there is nothing in the Constitution, that I can quickly recall, perhaps I'm wrong, that provides guidance for a foreign state basically picking our President over the will of the People."

I was disagreeing that this is what has occurred, at least based on what we know now.

[sl8]

51. Why a Congressional committee?

To make a ordinary, constitutional law, let's say to name a post office after me, requires the approval of the majority of both the House and Senate, plus the signature of the President. The bill would have to be reviewed and approved by a committee in each chamber before a vote would be held.

You're suggesting that Congress replace a sitting President through unconstitutional means, and appoint a committee to choose the successor. Not only would this be illegal, it would be a far less rigorous process than what we use to name a post office.

What you're proposing is a coup d'etat. Appointing a Congressional committee to select a successor no more makes it legal than if we appointed the DU Cooking & Baking group to select him or her.

[MFM008]

52. Ryan knew something

So did turtleface.
They figured they could just sit back and get away with watching it all.
Forget Mitchys wife is IN this cesspool.

[brooklynite]

53. ...except that the Election IS NOT illegitimate

The Constitution DOES NOT PROVIDE an opportunity for a do-over.

The Constitution does not require an informed electorate. It requires that States select Electors in a manner that they choose. That was accomplished.

[Blue_Roses]

56. I was thinking about this same scenario last night

What is happening now with our country is unprecedented and it stands to reason that there would not be anything in the Constitution to resolve it. However, that is when Constitutional Amendments are necessary.

In this case, if it is discovered that the election is illegitimate, that would make Pence illegitimate.

My suggestion would be:

--The previous administration resumes its duties as president, until a new election takes place.

--There should be a time limit on when the election could take place (say 6 -12 months, give or take), so that the urgency of picking a new president is taken seriously.

I honestly think, after a few more months of this shit with Trump, Congress will do anything to get him out. And of course my suggestion is only if Pence is considered illegitimate too. (which he should be)

I think this is an excellent question!
Like I said, I was just thinking about this last night. I read all the posts up above and while I do agree that the constitution is hard to amend, especially with a Congress that is controlled by the GOP, it's not impossible. We have never experienced this before in our country. It only stands to reason that we come up with a new solution, so if this ever happens--God forbid--in the future, we'll know what to do.

[Jim Lane]

57. Also bear in mind that the Constitution doesn't even require a popular vote.

You're saying that the popular vote by which the electors were chosen was tainted by foreign interference. But not only does the Constitution not allow for a do-over if the popular vote is tainted -- it doesn't require that there be a popular vote. In the first several elections for President, many states provided that their electors would be chosen by the state legislature, not by popular vote.

[Blue_Roses]

58. And its time to change it

Time to change the electorial vote to the popular vote for choosing a president. Constitutional Amendment time!

We have some of the most archaic laws in our constitution. The only silver lining to this crisis, is that maybe we'll get some of those things brought up into the 21st century.

[Jim Lane]

59. That has of course been proposed for some time.

Opposition to the Electoral College picked up a lot of steam after the 2000 election. (Even if you make the dubious assumption that Bush legitimately won Florida, it would still be absolutely clear that Gore had the popular-vote plurality.)

It would be hard to get such an amendment proposed and ratified. For purposes of this thread, though, what matters is that it would be essentially impossible to give such an amendment retroactive effect. The result of the Electoral College vote in December of 2016 will stand.

[Blue_Roses]

60. I remember all too well

of what happened with Gore and Bush. I had my voice in the group screaming for a change in the electoral vs popular vote discussion.

But this time is different. We had a foreign country interfere in our election and while we can't go retroactive with the results of 2016, we can set in place a new Amendment, so this will be clear in the future if like I said, God forbid, this happen again.

[Jim Lane]

62. The popular vote and foreign interference are two different issues.

If Trump had picked up a few million more votes, so as to win the popular vote, there would still be the argument that he bested Clinton in the popular vote only because of foreign interference.

It's comparatively easy to write an amendment that would abolish the Electoral College and elect the President by popular vote. (Getting it ratified, of course, would not be at all easy.)

A new amendment to provide a rerun of the election if we have "a foreign country interfere in our election" would be much harder. What constitutes actionable interference, and who decides? If Clinton had won, would Trump supporters be able to get a do-over by showing that the Prime Minister of Freedonia had said in a speech that Trump was an irresponsible nitwit, costing him support among Freedonian-American voters? Would the rerun election be available only if a jury (in what court?) concluded that the foreign interference had taken the form of violating some criminal statute? Would there be some requirement of showing that the effect of the interference met some minimum test of significance?

The only solution that readily occurs to me would be to establish a monarchy. The hereditary monarch would have no control over policy but would, at his or her discretion, be empowered to order a new election under such circumstances. The ratification of that amendment is, shall we say, unlikely.

[NYC Liberal]

64. The only way it would legally be "illegitimate" is if you showed that the votes of the electors were

illegitimate. Those are the people who elect the president: 538 electors.

[Lee-Lee]

67. Exactly

The only thing required in the Constitution is a majority of electoral votes.

Unless you can show those votes were fraudulently counted, it's a legitimate election under the Constitution.

Doesn't matter if they had faulty basis for how they voted, only that the votes were counted as cast.