Rather than hijack the 3rd term thread I decided to open a new one. Imagine a US election with two parties, I will call A and B for the purpose of this thread. Suppose Party A wins a majority of the electoral votes, but Party B has a majority of seats in congress (Senate and House combined). Imagine that Party B simply decides not to count the elector votes cast for the Candidate of A and does count those for B. SCOTUS says, “Not our business to tell congress what to so.” What do you think will happen then. If I am not mistaken the 2020 election was the first time a large number (I think it was at least a third) of representatives voted not to count the EVs from states that Trump had disputed, despite the lack of evidence.
So they say the relevant constitutional provisions are non-judicable and/or not self-executing?
Your scenario implies that SCOTUS has legitimated Party B’s power drive, and their presidential ticket will take power.
In the medium term, I think we have moved to something approaching a parliamentary system with an unwritten constitution. Looking at this a a totally abstract way, with no hint as to the ideology of parties A and B, I might be fine with that. But the resulting system of government, because of how it came about, would lack legitimacy and stability. Lack of confidence in the impartial rule of law would result in economic decline.
Presumably in such a scenario ‘Party B’ would come up with some facile technical issue as to why said votes are not certifiable (allegations of voter or election fraud, improper delivery of the Certificate of Vote, et cetera) causing them to revert to a House election. The post hoc legitimacy of such an election would depend upon any investigation into those issues and whether they could be substantiated. If no issues are brought to bear regarding the Certificate of Vote from the pertinent states or those issues are not substantiated, the move by ‘Party B’ to invalidate the count would be an abandonment of the Constitution as the core law of the nation governing federal elections.
I would say that it is difficult to imagine any Supreme Court, even as currently composed, would decline to opine on the clear law of this matter but it seems entirely possible to get at least three justices (take your pick) pulling on the court to not get involved and that might sway a couple of others. In which case, any remaining validity of the Supreme Court also goes out the window. I don’t like to speculate on the odds of a hypothetical conundrum but quite frankly I don’t think it is entirely outside the realm of possibility for the 2028 election the way it would have been for the almost two hundred and forty years of Constitutional rule at that point.
Stranger
Pardon my confusion, Stranger, but I’m having a hard time parsing your last sentence (quoted above).
Could you please help me out?
Either war or capitulation to illegal rule.
I also find it implausible that SCOTUS would sit it out. Hell, Kavanaugh already helped SCOTUS put their thumb on the scale in one election.
We’ll see if it happens. But the fact is that in doing so Congress would be violating its own rules that make the count purely administrative. Also, there is the out that under the Constitution assuming no certification or not enough votes certified so anyone gets a majority then it would go to the House for an election among the top 3 vote-getters and politicians are too vain to give up that opportunity.
Not so much an “out”.
The OP’s hypothetical amounts to the party with the House majority conspiring to screw up the EC vote counting so badly that eventually the election is thrown to the House. The House where that same obstructing party suddenly unanimously votes for their party’s presidential candidate who is therefore elected.
The constitution, the laws, the rules, and the process all assume good faith behavior on everyone’s part. Yes, there’s partisanship. But nobody is cheating. Once cheating enters the arena, it’s unclear who the referee is, who has power to bring a complaint before a referee, what power they have to enforce their decisions, etc.
The idea of a small cheat at the start of the EC process that ends up with an unequivocal not-cheat at the end sounds very seductive to people who want to ensure that only their desired outcome can ever happen. Then they can label any complaining as now-moot bickering about narrow technicalities and call it a day.
That there has never been a national election since 1789 where the House of Representatives would flatly refuse to count all certified votes to favor the candidate from the majority party. There have been instances of questioning the tallying of votes (in particular the ‘hanging chads’ of the 2000 presidential election), or the disposition of Electoral College votes cast by ‘faithless electors’, but in such cases the issue was adjudicated by the courts or was dealt with by contingency election in the Senate (only impacting the vice-president; there has never been scenario in which ‘faithless electors’ compromised the count for the presidential election). That the House would not count all certified votes (the votes are actually certified by the state they come from so the only question is that the documentation delivered from the state is correct) is inconceivable even when whichever two dominant parties existed at the time were at such odds that members would come to blows on the floors of the Congress would still respect the electoral process and the current occupant would voluntarily leave if his opponent won.
For this next presidential election, there are very good reasons to believe that there is significant question as to whether that would be the case as Republicans are already flagrantly violating all normals of electoral integrity and working hard to gerrymander and suppress voting in their favor in every state where they have strong control of the statehouse, and many will still not acknowledge that their candidate lost the 2020 election (with anyone not falling in line being purged out by threat of being primary’d, subject to legal investigation, or have their families being physically threatened for not toeing the party dogma).
Stranger
Nevermind.
I think war is unlikely. In a rich country like the U.S., too many people have too much to lose. On the other hand, one can imagine this scenario happening decades in the future when the U.S. may be a much poorer country.
If the incumbent president is from Party B, Congress, the incumbent president, and, implicitly, SCOTUS, would all be pointing in the same direction. Capitulation to illegal rule would then be certain.
If the incumbent president is from Party A, it is hard to be sure. Someone correct me, but I think that the military controls who has the nuclear football. So the joint chiefs of staff would have to, on January 20, decide whether to do what the incumbent president says to do, or to do what Congress says. My guess is that capituation to illegal rule would occur, but there is a possibility that the military would effectively side with the party which legitimately won the last two presidential elections.
The White House Military Office supervises the handling of the Presidential Emergency Satchel (the ‘Nuclear Football’) for whomever is inaugurated as President. The Joint Chiefs of Staff do not have any operational command authority; they primarily act as a collective advisory body to the President and report directly to the Secretaries of their respective branches. Neither the JCS nor the military establishment as a whole would act as a Praetorian Guard, anointing a candidate with the Presidency; that is purely up to the Congress to decide with legal adjudication of the courts (up to the Supreme Court, as in the 2000 decision).
Stranger
I do not understand.
In the OP scenario, and if the presidential incumbent is from Party B, there is a real possibility of either of two individuals being president.Theoretically, you could go past January 20 with no one individual having all presidential powers. If the OP scenario occurred a century ago, this would be a realistically possible constitutional crisis scenario. But now, or in the future, I think that the power inherent in having nuclear launch authority is so great that whomever has that would be deferred to as being the effective president – even while powerless debaters like us still disputed legitimacy.
If the last paragraph is allowed, there must be some person, or small group of person, who is going to determine which would-be president gets the launch authority. Who is that person or persons? I am failing to understand how it could be a big group of people like Congress could be the decider.
If the illegitimate Party B candidate is the incumbent, that will decide it My question has to do with where a new president is taking power.
You’re right that the DoD (or elements thereof), be omission or commission will decide the issue. Only they have the ability to force the issue, while everybody else is only able to talk about the issue.
In the case of an impending handover to an obviously fraudulent “winner”, the probably chaotic events between election day, Jan 6, and Jan 20 will be cause for all sorts of machinations, both public and secret, within DoD & its people.
I believe @Stranger_On_A_Train’s point to be that the official part of DoD will be institutionally incapable of doing anything but follow the letter of the law: agreeing to sit still, do nothing, and let the factually fraudulent but legally anointed winner take office. Which doesn’t rule out mutinous behavior by some minority faction within the military, but that’s not the way bet either.
This is the FQ answer, and really only the second part, because as @PhillyGuy says, the US is still pretty fat and happy and is not going to go to war for that.
These things happen in other countries – it’s the end of constitutional rule, likely the end of democracy, at least at the federal level. It can happen here.
What other answer can there be? There are laws and constitutional rules, and if they’re broken, there’s no way to know how it will turn out in that kind of lawless scenario.
I’m not quite sure where the focus on control over authorization to use nuclear weapons come from, but while control over the enormous nuclear arsenal of the United States is an awesome power and terrible responsibility, it is of purely symbolic significance with respect to domestic politics. If the President were to call up USSTRATCOM and order the use of nuclear weapons on the US domestic population, even in the case of a validated order (i.e. the SecDef or another Cabinet Secretary confirms that the order came from the President) I do not believe military commanders would comply because it is an obviously and evidently illegal order. Whomever is holding the ‘bisket’ (the plastic sheath which contains the authorization code for the President to order the release of nuclear weapons to military control) doesn’t in some way anoint the carrier as President; the President is whomever the House of Representatives say is President, either from a count of certified Electoral College votes or (in the case that there are insufficient ‘counted’ votes for any candidate to show more than 270) then who they vote into that position.
Someone could challenge this is court, in which case it would go through the federal judiciary and up to the ultimate appellate court, i.e. the Supreme Court on the ‘shadow docket’ but frankly the Congress could either agree to adhere to that decision or reject it in favor of their own process, and the Supreme Court would have no enforcement capacity to alter that. In any case, the military would assign the authority to release nuclear weapons and all other capacity of Commander-in-Chief to whomever is designated as President. For the military to play a role in deciding who that is would be a de facto military coup, and even as gutted as Trump has tried to make the military leadership by dismissing senior leadership that he viewed as insufficiently compliant, the US military (at least as currently comprised) is constitutionally adverse to participating in any kind of a coup.
I don’t mean to sound blasé about the very limited oversight and plenary executive control over nuclear weapons, and that one person could unilaterally and without approval of Congress or any other authority legally launch a nuclear attack against another nation is an absurd situation that should really be reconsidered from both an operational and moral standpoint but it doesn’t really have anything to do with domestic political authority within the United States.
While true, I think those “machinations” would largely be trying to avoid the appearance of bias and putting roadblocks to Executive Orders that would compromise the apolitical stance of the Department of Defense because while there are certainly a few Michael Flynns in senior Pentagon leadership, the vast majority of senior military officers are institutionally conditioned to reject politicization or use of the military to back any kind of revolutionary plotting. As you say, they are “institutionally incapable of doing anything but follow the letter of the law”, for better or worse, and are going to depend upon the civilian leadership to sort out who sits in the Oval Office, and then deal with whatever falls out of that.
Let’s just be clear, it is happening here. The Congress is subordinating its authority by granting it, either in abeyance or by direct action, to the executive while the ‘conservatively’-stacked Supreme Court is giving it their blessing. I don’t think people realize the extent of democratic backsliding we’ve experienced, not just in the last 150-odd days or even in the last decade, but over going on forty years after decades of mostly progress on extending access to the franchise and protection of civil liberties, if incompletely and imperfectly, to many who effectively had none, coincident as well as technological and economic progress which gives lie to the argument that giving people rights somehow blunts our ability to be a successful and prosperous nation. Republicans of the Eisenhower era would not recognize the entity that carries their party’s banner today (and neither would Democrats for theirs) but I think Ike would ruefully moon that his warnings of the “military industrial complex” passed virtually unheard by those in power to prevent it. I find it not unlikely that something like the hypothetical scenario posed by the o.p. may well come to pass, soon if not in 2028 specifically, and that we will be left with a lot of shoulder shrugging and gormless handwringing but no effective action, and I’m not sure what to say about that other than, “We told you so.”
Stranger
Agree completely with the first part. Getting out of the way and being clearly and obviously seen to be getting out of the way is exactly what I’d expect from DoD.
But …
The OP was deliberately trying to set up an anonymous strawman very much at odds with current politics. Meanwhile here in the real world …
Just as with the supreme court, the Rs have another ~3 years to pack the upper reaches of DoD with trumply toadies. Normally the pace of turnover in the flag ranks is pretty glacial. Some well-chosen firings could certainly speed that up.
The scenario we’re looking at in 2028 is the public votes for the Democratic party president, but due to gerrymandering, suppression, rural structural advantages, etc., gives the House to the Rs. Meanwhile trump somehow runs and loses, or does not run at all and his hand-picked R placeman loses.
Now the Rs control the senate, the newly elected House, the SCOTUS, the sitting presidency, and have lots of sympathetic MAGA “patriots” among the DoD senior leadership both staff and line. Especially line. And not by accident.
That’s the scenario we’re actually looking at. The Rs mess with the EC counting, and run down the clock leading to a vote in the House. Which goes straight down party lines by red/blue state and gives the legal win to the R, be it trump himself or his hand-picked protege.
Now what?
IMO we live in a lawless autocracy for 50+ years. Somewhere between Russia, Hungary, Turkey, the Philippines under Marcos or Duterte, etc. That’s what.
Most of us here on the Dope will not live long enough to see the bottoming out of the Evil, much less the full return to normalcy. Maybe our grandkids will live out their dotage in a slowly recovering newly democratic but still wobbly country. Maybe.
I’ll suggest you all start thinking about what to do if that comes to pass, because it’s depressingly possible it does.
Ideally a general strike could work as a solution, or trigger for one, I understand it’s illegal there (!) but at that point legality has been left behind and is rapidly receding in the rearview mirror. The problem would be not the illegality of the act itself but the will of the population to actively engage in it, and if the Rs got enough votes to win the House they have if not most, at least a sizable percentage of the population on their side.
Another alternative, for the blue states, would be secession but the military would probably stomp that.
So I guess you are left with massive (or as massive as possible) civil disobedience and see how it goes from there.
In any case, as I said, better start planning and preparing now.
I know Trump is really enamored with “Hitler’s generals” and wants to stack the DoD in a similar fashion but the thing about that is that the Nazis basically built up the military of the German Reich de novo after it was disestablished in the Treaty of Versailles following World War I, so Hitler appointed generals who were largely personally faithful to him or at least aligned with the Nazi cause. Trump, on the other hand, can only promote from within, and the emphasis on apolitical leadership is deeply ingrained in senior military leadership culture. He’s going to have to cut pretty deep and advance like-minded people through the staff ranks pretty quickly to get the kind of personal loyalists in the general officer corps he wants, and give the example of people like Pete Hegseth he’s not going to be selecting them for competence or stability. Which is not to say this isn’t exactly what will happen, but he’s going to end up hollowing out the military like other civilian agencies have been gutted, and that house of cards is going to fall the first time the United States gets into a real shooting war with China or anyone else.
A general strike in the United States is not illegal (except for specific classes of government workers) but the unionized labor infrastructure has been so weakened (and in many sectors is so fundamentally corrupted) that it would take some kind of miracle to make that happen, and in the current political environment would probably be considered a justification for a federal response to ‘insurrection’. Secession is definitively illegal under well established principles and would require a Constitutional amendment to make it legitimate.
To be honest, without some kind of radical change in both leadership and a pragmatic, evidence-based policy schema for mitigation and investment into the fundamentals of education, infrastructure, and civic engagement, I think we’ll be facing serious if not existential crises as a nation in terms of natural disasters with a lack of effective response, decay of critical power and transportation infrastructure, and loss of national confidence both economically and politically in the next half century if not before. People have not woken up to this because there is still food on grocery shelves, gas at the corner station, electricity flowing through the wires, and all your favorite streaming services and social media to keep people distracted and disengaged from the real world around them. There seem to be a thundering herd of people expecting that “AI” is somehow going to come along and play babysitter, making the economy boom while building personal robots and extracting endless resources and magically solving the multitude of environmental crises with a copious dose of magic pixie dust, i.e. the ‘abundance mindset’ of the techno-optimists who argue that everything has always improved over time so further progression is inevitable, which critical thinkers will recognize as the Hot Hand Fallacy.
Stranger
Agree w your last hunk. The insider class aided by the newly re-invigorated klepto- class is content to loot Rome while the heavy flow of bread and circuses keeps the masses calmly duped as they ride the freight train directly to and over the cliff.
Even if, in some counterfactual world there was not AGW and worldwide economic disruption and political unrest coming our way, and Fortress America was somehow real, the US public will mostly trundle along oblivious until the wheels are well and truly irreparably off their bus.
But at least they’ll be in a well-orchestrated frenzy of anger about all the wrong things as they ride the Doomtrain to the cliff near Crazytown.
The cold comfort of repeated chorusing of “I told you so” is about the only solace on my / our horizon.
Thanks, Stranger.