I think I brought this up possibly once before. But it deserves a thread of its own.
The Supreme Court of the United States doesn’t work by law or constitution. They work by precedent. Even originalists would have to concede this.
Anyway, fast forward to when I was taking government class in HS. There apparently is this clause in the Constitution that says the federal government shall guarantee every state a ‘republican’ form of government. The SCOTUS has never ruled on this clause. It remains unenforced. (I would think every state has a republican form of government anyway. But I digress.)
The 22nd amendment says no person shall serve more than two terms as president. Period. But what if the SCOTUS coyly says that they just choose not to enforce this section? What would happen then?
Yes, I know the 2020 election hasn’t happened yet. But this is a hypothetical question too. I mean maybe a Democrat will pull this trick some day too. Who knows?
The SCOTUS doesn’t enforce anything. They can interpret the 22nd amendment to mean something that it’s plain language doesn’t mean if they feel like it. The problem here is that elections are enforced by the states and congress who can just as easily ignore the SCOTUS and continue to enforce the 22nd amendment as written. This is called a ‘constitutional crisis’, an overwrought term, it just means the different branches of government are not cooperating with each other.
If SCOTUS chooses not to take up a case, then the lower court ruling prevails. In other words, some other court effectively becomes the supreme court for that case.
Actually, The SCOTUS has made a final decision by allowing the lower court decision to stand. SCOTUS is saying there’s nothing for them to decide (or however you want to phrase it).
If SCOTUS chose not to enforce the 22nd Amendment then there would be, as TriPolar wrote, a constitutional crisis. Other political actors such as Congress and the states would weigh in (and maybe even, God forbid, the military). Could get ugly. Ignoring the plain language of the amendment would be a big freakin’ deal.
No, they wouldn’t. The justices swear an oath to the U.S. Constitution just like every other American public official, from the President on down to the cop on the street. They are bound by precedent to the extent they choose to be, and in recent years they have, on several occasions, chosen not to be especially bound at all, when a majority disagreed with precedent. They have considerable discretion in interpreting the Constitution and no one to force them to rule otherwise unless a new constitutional amendment is passed, something that the Framers purposefully made hard to do.
Not quite. The 22nd Amendment says, among other things, “No person shall be elected to the office of the President more than twice…” (emphasis added). We’ve had other discussions here on the Dope as to what might happen if a person who had already been elected to two terms were selected as someone else’s running mate and then took the top job upon the death, resignation or removal from office through impeachment and conviction of the President who chose him or her. Farfetched, yes, but also legally possible, I think. That person would then be serving a third term.
I don’t want to start this dreary exercise all over again, but my memory is exactly the opposite. A two-term President is not legally eligible to be the VP, and even if elected could not become President, just as others in the line of succession not legally eligible could not become president in case of a vacancy even if all the others ahead of them were not available. This loophole is imaginary.
Obviously, this is all talk until an actual case with actual facts arose. Our memories differ so radically on this, though, I needed to put in a counter.
Back to the OP. What the OP is describing is a coup and asking what the legalities of it would be. You cannot give a legal answer to an illegal situation. Events would play out in some fashion, but the law wouldn’t have much to do with it.
The likeliest thing is that many states would refuse such a candidate a place on the ballot. I suppose there could be enough red states to constitute an EC majority that could still list him. Although this is all far-fetched it would have to be counted among the many reasons the Dems are taking state races seriously. Also I would hope there were enough red states that might also refuse to play.
