What If He Can’t Be President?on December 1, 2008 at 8:15 am
I’m pretty sure that I’ve never mentioned the birth certificate issue up until this point, even in the heat of the campaign.
I have to confess that I have no idea what to make of the fact that, despite all of the lawsuits (most of which were thrown out due to lack of standing, which in turn makes one wonder, if a US citizen has no standing to challenge whether or not a presidential candidate is eligible to be president, who does?), the Obama campaign could easily put this to rest by simply unsealing the birth certificate, which (coincidentally with his trip to Hawaii to see his dying grandmother) became explicitly unavailable to the public by order of the (Republican) governor’s office. Instead, it has spent thousands in legal fees fighting efforts to force it to present a valid original certificate of birth.
But let’s ignore that for now. Let’s be purely hypothetical. Suppose, just for the sake of discussion, it does turn out in fact that Senator Obama has been less than forthright about his past (something that would be hardly unprecedented) and turns out to not be constitutionally eligible for the office, due to (say) having been born in Kenya to ineligible parents. I think that, assuming that we actually follow the Constitution (sadly, a novel concept these days), and he thereby does not become the next president, there will be (among other things) massive race riots. But here’s the interesting question: who becomes the next president in his stead?
The Constitution is unclear. According to Article Two, it has rules of succession for presidents, but not for presidents-elect. There are three time periods of interest here. The first is if it comes to light after he has been sworn in to office. In that case, it is straightforward. Joe Biden becomes president (a scary thought, at least to me, and assuming that he hasn’t been replaced in the interim for some reason).
Suppose it happens after the Electoral College meets, and has already elected him? Though the Constitution doesn’t say so explicitly, I would suspect that the SCOTUS would rule that he was presumptive president, lacking only the oath of office, and that the post-inaugural rules would still apply, but this is not obvious, and there is no precedent of which I’m aware. Again, in this case, the Veep-Elect would become the President-Elect, and it would be President Biden in January.
But right now, which is why all the law suits are being filed in several states, things are up in the air. The idea is to influence the electors, who don’t actually elect the president until December 15th, two weeks from today. They are pledged to vote for Senators Obama and McCain, and they were chosen for their loyalty to those respective slates, but there is no legal or Constitutional requirement for them to do so. Thus, if a revelation about Senator Obama’s citizenship status were to become a significant issue, it would be up to them to deal with it. While they can, in theory, elect whomever they wish, if they were to knowingly elect someone ineligible, that would be a violation of their constitutional duty. I would assume that if they did so, they might be subject to prosecution by the Justice Department, though it is unclear on what basis. I’m not sure that you can prosecute someone for violating the Constitution per se, and I’m unaware of any applicable federal law, so it might be that the only recourse would be a lawsuit to get the electors’ votes overturned.
But if they were to choose to follow the Constitution, and elect someone else, who might it be? Some would no doubt argue that it would be best to follow the precedent of Article Two, and elect Senator Biden instead. But it could equally be argued that Senator Clinton might be the most appropriate pick, since she came so close to defeating Senator Obama in the primary. There are no other obvious consensus candidates. Of course, the fascinating thing is that there could be a split among the Democrat electors between Clinton and Biden. A two-way split wouldn’t be a problem, since there are over twice as many Obama electors as Clinton electors, but if there were some other candidate in the mix, it could allow the minority McCain electors to prevail. In turn, they could also decide to have a do-over of the primaries, and elect a (say) President Romney to deal with the economy. Heck, they could even put in Fred Thompson or Sarah Palin (though it’s hard to imagine a consensus forming around either). The most unlikely thing (at least with three potential candidates — two Democrat and one Republican) would be a tie vote that would throw it into the House. But hey, after this election, anything could happen. Particularly in light of all that would have had to have happened to get to that point.
[Update early afternoon]
I’m asked in comments to clarify my statement about two-way versus three-way race in the Electoral College. McCain got (I think) 173 electors. Obama got 365. If Obama supporters split between two candidates, the winner between them will get at least half plus one (183) which is still more votes than McCain has. The only way for McCain to sneak in would be for the Obama vote to be split three ways, which could result in Democrat winner only having 122 votes. A three-way race would have to be decisive for the Democrat (at least 174, or almost half) in order to outvote McCain (assuming that the consensus of the electors would be for McCain. Or someone, but it has to be one).
Hope that clears it up.
[Update a couple minutes later]
I see now that the interim issue (and Constitutional loophole) of the President-Elect was dealt with (sort of) by the Twentieth Amendment:
Section 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.
Second emphasis mine. I’m assuming that in this case, “qualify” would include “not having been found to be foreign born,” so Biden does become President-Elect in the event of a problem with the President-Elect.