Saturday, January 9, 2021

The Democrats' Dilemma

In this post, I want to draw out some logical consequences of the Democrats having prevailed in the face of the multiple challenges to their majority in the Electoral College. I proceed in a series of logical steps:

1. The US Constitution does not address what happens if a President elect, as selected by the Electoral College, resigns or becomes incapacitated before his term of office, under the 20th Amendment, begins at noon on January 20 of the year following a presidential election. In either event, the President elect would not take the oath of office, and so would never become the President. That office would remain vacant until filled by some other procedure — but what law instructs us as to how that is to be done? 

2. Section 3 of the 20th Amendment provides for the replacement of the President-Elect by the Vice President-Elect, but only in the event the President-Elect dies before assuming office: 
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. 
3. That same Section goes on to specify: 
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 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. Those provisions, however, would not appear to address the situation where a duly elected President elect, having been chosen before his term was to start, resigns or becomes mentally incapacitated before January 20. In either of those events, it is not a case of the President elect’s having failed to qualify for office before the start of his term, although perhaps such an argument could be made. The better interpretation of the verb “qualify”, however, would be as referring to a temporary inability, as of January 20, to meet the express qualifications for the office of President (e.g., not having attained the age of 35 before January 20, as opposed to not being a native-born citizen, which would be a permanent disqualification) —- some such inability that can, and perhaps soon will be, cured in due time. But in the case of resignation, instead, the elected candidate declines to assume the office, as is his right in a free country; and in the case of becoming mentally unfit, he becomes incapable of performing the office. 

5. Neither does the 25th Amendment address the hypothesis of the resignation or incapacitation of a candidate-elect before actually assuming office. It speaks only to those who already occupy the offices of President or Vice President (i.e., who have taken the prescribed oaths), not to those who have yet to assume those offices and who have yet (or who are unable) to take the oaths. 

6. Finally, 3 USC Section 19 would also appear to fail to address the situation of any candidate-elect resigning or becoming incapacitated before assuming office. It begins as follows: 
If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President. 
That statute is on the books by virtue of the authority granted to Congress by Section 3 of the 20th Amendment, quoted above. But by the terms of that Amendment, it applies only to cases where a “president shall not have been chosen” (emphasis added), which would not be the case under the assumptions made here, or it applies to cases where “the President elect shall have failed to qualify” (emphasis added), which just takes us back to the discussion in ¶ 4 above. There does not appear to be any predicate for that provision to kick in where a President elect is incapacitated or otherwise unable to be sworn in. 

7. The only language that could arguably be read to apply to the situation of a President elect’s resignation or permanent incapacity between the confirmation of his election and January 20 would appear to be the following original language in Article II, Section 1, clause 7 of the Constitution, which dates back to 1789: 
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President . . . 
Let us see how such a scenario would work out. Assume the following: 

8. As happened on December 14, the electors met in the various state capitals, and a majority (more than 270) cast their votes to elect Joe Biden as President, and Kamala Harris as Vice President. And on January 6, Congress confirmed those results, making Joe Biden the official “President elect”. 

9. Between January 6 and January 20, 2021, however, Joe Biden either voluntarily resigns as President elect, or becomes permanently incapacitated (i.e., has a totally disabling stroke, or goes into a coma from an accident, or becomes senile, or unable to speak, or suffers some similar serious disability). What happens then? Who is inaugurated as President on January 20, 2021? 
a. Does Kamala Harris automatically become President? By which constitutional provision, or federal statute? See above — there is no amended constitutional provision or statute that covers that precise situation. 

b. Nevertheless, let us assume that Kamala Harris steps up and demands that she be inaugurated as President on January 20, 2021, since (as she argues) the Vice President replaces the President in cases covered by Art. II, Section 1, Clause 7 of the Constitution, which remains in effect except only to the extent it was amended by the 25th Amendment quoted earlier. She argues — cogently, I would contend, that the “Resignation, or Inability to discharge the Powers and Duties of the . . . Office,” of either the President or of the President elect amounts to the same thing, because there is no one otherwise authorized to act in such a case except for the Vice President, who will have by then assumed office without challenge or disability. (There is no ability to provide for the appointment of a replacement VP elect, since any actual Vice President has to await appointment as specified in Am. 25, Section 2 -- see below.) She also would cite to Section 1 of the 25th Amendment, which is roughly to the same effect. (“In case of the removal of the President from office or of his death or resignation, the Vice President shall become President” -- but see the even more comprehensive provision in Art. II, Section 1, clause 7 of the original Constitution, quoted above.) 
10. So what are the consequences of Vice President elect Harris becoming President as of January 20, 2021 — or at any later time before the next presidential election? 
a. The first consequence is that she no longer will preside over the Senate. 

b. A second consequence will be that there will be no such presiding officer (apart from an agreed president pro tempore, chosen by seniority among the existing Senators) until a replacement Vice President is nominated by (now) President Harris and approved by a majority of both Houses of Congress (Am. 25, Section 2): 
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. 
c. But if Harris assumes the office of President as of January 20, 2021 or later, who will control the voting in the Senate, without her authority under the Constitution to break tie votes? Consider: If the Republicans, as now appears likely, lose both of the Georgia Senate elections, then the Democrats will have a 50-50 balance in the Senate, and (in a Biden administration) they could count on Vice President Harris to act as tie-breaker in the event of any stalemate or tie. 

d. But if (in the scenario assumed above) VP Harris becomes President Harris on January 20 (or later), then she will no longer be able as of that date to resolve 50-50 ties in the Senate; nor will the Democrats in the Senate be able to resolve such disputes, since they will have to await the appointment of a new VP to decide tie votes. The Senate would likely agree upon a presiding officer pro tempore, but that person could not resolve any 50-50 ties, because he or she will necessarily be one of the 50 votes on whichever side is his or her party. 

e. The Senate could thus be deadlocked indefinitely over the approval of a person appointed by Harris as her Vice President, so long as none of the 50 Republicans (e.g., Collins, Murkowski or Romney) defects, and so long as all 50 Democrats adhere to their party’s line. 
11. Now you can begin to appreciate the pressure the Democrats will be under to keep Biden functioning as President for as long as he is physically up to the job (and perhaps even if he becomes incapacitated: remember how Edith Wilson kept the truth about her stricken husband from the public for seventeen months, until his second term ended in March 1921). 

12. But the Democrats will still be in a “Catch-22”: they cannot arrange for Kamala Harris to assume the presidency without losing, possibly until the end of Biden’s term, the ability to designate a Vice President who will be able to resolve any tie votes in the Senate.


  1. I think it is likely that Biden will last at least to be sworn in. Having said that we are certainly living in interesting times. I fear we may be at the beginning of the collapse of the Republic.

  2. Is there a scenario in which someone other than a sitting Senator could be selected as President Pro Tempore? It would of course break 200+ years of tradition, but then we are way past worrying about that. Thinking of some sort of convoluted process by which outgoing VP Harris could break a tie in such an appointment which would remain valid until a new VP is chosen.

  3. The Insurrection act may be activated by Pres Trump and then it will really become interesting.

  4. I'm addressing your comments concerning the post-inauguration discovery of Biden's dementia. While I fervently wish Ms Harris would not assume the position once held by Messrs Washington and Lincoln, I don't think the Democrats have anything to fear from the GOP vote. The Democrats control the House, so any vice presidential candidate not in lockstep with their party (ie, a moderate Democrat [if such a creature exists] or a Republican) will not receive a majority of votes in the House. Given the track record of Romney, Murkowski, and Collins, I envision at least one or more of them voting for the Democrat-leadership's proposed candidate, in the misguided, lala-land view that this will somehow win them future brownie points with the Democrat masters. I don't think the Dems have anything to fear, unless Yellowstone decides its every 600,000 year eruption is overdue and decides to blow.

  5. Thank you for those insights, sophy0075, and in many respects you are correct. However, the calculus might just not play out as you suggest. For Romney, Murkowski or Collins to cast a deciding vote to appoint a Democrat Vice President who will then be able to break all 50-50 tie votes in the future is indeed the definition of one cutting off one's nose to spite one's face. Even those three RINOs may hesitate before committing such hara-kiri, especially if they are alone in changing the course of history in that way.

    But alas, what are we all but fallen creatures, and they are perhaps among the "more fallen", if we may even presume so to speak without actually judging them at the peril of ourselves being judged. We certainly cannot expect them to be strong stalks in the wind. As they have shown consistently in the past, they will bend in the direction of least resistance in order to appear to go with the flow.

    But I think I may safely predict that their days of being able to play at being "Republican" are numbered. The monumental assault on conservatives of every stripe that we are witnessing now will have lots of repercussions for RINOs in future elections, the more so if they contribute to helping Democrats take legislative control of the Senate.

  6. "a moderate Democrat [if such a creature exists]"

    What continues to puzzle me is that Democrats overwhelmingly chose, for our presidential candidate, an old white man, and the most conservative of a very large field, whom mainstream Republicans seem to consider the second coming of Leon Trotsky.

    I'd like to assure you, if you don't know any Democrats personally, that most of us are ordinary working Christians who just want to live our lives and have a government committed to justice and and subject to law and the consent of the governed, notwithstanding the fact that both extreme wings of both parties are composed of noisy crusaders.

    The "socialism" much complained of consists of a desire to institute a national system of health insurance, which the American Catholic bishops have been recommending for over a century, and which has become universal in other advanced industrial democracies (the system in Britain was instituted by the Conservative Party in the mid-1950's). Having myself agreed to medical procedures for my children knowing full well that, if uncovered, it would mean bankruptcy, I don't understand the vehemence of opposition to such measures, especially when the manifold problems with the Affordable Care Act could probably be solved if Republicans proposed their own improvements.

  7. “The US Constitution does not address what happens if a President elect, as selected by the Electoral College, resigns or becomes incapacitated before his term of office, “

    What on earth would make anyone think that Joe Biden would either resign or become incapacitated? What a bizarre idea on which to build a complete fantasy.
    And what is your theology of this incredible idea?

    1. Paul Sound, you apparently have not been troubled a bit by the increasing evidence of Joe Biden's gradual decline into dementia. There is already much disagreement in print as to when he will "become incapacitated", or whether he is already incapacitated, and the 25th Amendment is waiting in the wings to be invoked by a very self-interested VP Harris -- but Biden's Cabinet has first to be seated before that can take place.

      Theology has nothing to do with it. I was simply interpreting the language of our Constitution and the statutes regarding presidential succession. The main point of the article was not what could happen between January 6 and January 20, but that the Democrats have landed themselves in a dilemma which will last for as long as Biden manages to function up to January 20, 2025. That is not, I submit, a "complete fantasy", but the hard reality of the choices the Democrats knowingly made.

    2. Theology has nothing to do with it! You really mean that God has no part in the appointment of the President? The oath that the President takes doesn’t involve God at all?

      And yes of course I’ve read suggestions about Joe. oden having dementia etc. I’ve read a lot more over the past four years about your man not being too well either. Was I supposed to believe all of those as well? I suggest an evening spent watching All the Presidents Men. You’d find it helpful, I feel sure.

  8. Paul Sound, when you invoke God as having a "part in the appointment [your word] of the President", you are expressing a religious belief, not a theological one. Theology is the study of religion and a religion's God; religion is all about one's belief in that God, and what He does or does not do to affect our lives. So yes -- while I believe that God is in control of what will now happen, that is my religion, and not my theology. Similarly, the oath that a President takes "before God" has to do with the President's belief (or not) in God as holding him responsible. I am not aware of a single President, other than possibly John Quincy Adams when he attended Harvard, who may have taken a course in theology.

  9. I have a feeling that we will see some form of this before Jan 2025. As Joe's dementia grows and his mind slips closer and closer to the abyss -- you mentioned Wilson but not Reagan, whose bout with Alzheimer's was also largely hidden from us -- the hounding from the far-left for Harris to push Joe out will become stronger and stronger. It wouldn't surprise me to find that at least behind the scenes that has already started.

    Dems have more control over what happens in the Senate if Biden is pushed out before the '22 elections. If he is able to hang on longer than that, and if control of one or both chambers flips, we face the prospect of no VP being confirmed if Harris is successful in pushing Joe out. There are worse Constitutional crises to contemplate, but having no VP would be bad enough.