This is maybe a bit of a factual question, but wrapped up in hypothetical scenarios.
Start with the individual States declare their winner, the Electors are chosen and cast their votes, Biden is elected. But, supposing that Trump does not concede and instead vigorously contests the election results: denial/lawsuits/court cases - combined with loud proclamations that he actually won and it’s being stolen from him. There would surely be some level of media supporting him. Pundits claim a “constitutional crisis” (whatever that means really).
What ultimate body or authority, reporting to whom, would be able to deny Trump, and what physical enforcement force, reporting to whom, would be able to remove him from office in order to swear Biden in?
I have read that thread, thank you very much, and it does not address my questions. Now if you have something to contribute, in the way of answers, I welcome it. Otherwise, I invite you to wait for others to contribute answers.
No formal action is taken when a president leaves office. His term just ends, at noon on January 20, no matter what else happens. We swear in a new one, and that person becomes president. If Biden wins, he’s taking the oath of office on January 20, one way or another, and at that point he’ll be president regardless of what Donald Trump does or doesn’t do.
So I’m not sure what you mean by “remove him from office”. Physically remove him? If Trump refuses to leave the White House, then the new president can order the Secret Service to remove him. But he doesn’t have to be physically removed to no longer be president.
Powers, your scenario supposes that all bodies are in agreement on the results. But what if, through Trump’s machinations, the SCOTUS is not yet reached a final decision, and the Congress takes the position of “we’re waiting to see what SCOTUS says”.
The answer depends on the specific details you’re hypothesizing.
Ultimately, Congress gets to decide who is president, if that’s what you mean. The new Congress, to be specific. They meet to certify the electoral college results in January. If something goes wrong, then they hold an election in the House with each state delegation getting one vote.
Congress would never “wait to see what SCOTUS says” with the Jan 20 deadline looming.
Look what happened in 1876 if you want an example.
Come January 20th, SOMEONE has to take over. If no President has been elected, then the VP-elect takes over. If no VP has been elected, then the Speaker of the House takes over.
Sure it does. The very first sentence of the 3rd post answers your question:
It doesn’t address this portion of your question: “would be able to remove him from office in order to swear Biden in?” because Trump doesn’t need to be removed from office to swear Biden in. Biden just gets sworn in, and Trump is dragged from the building.
Presumably once the Electoral College has voted, then it’s over and done with. Biden will be the new President, and the Secret Service or maybe Capitol Police would do the removing. Before the Electoral College votes, there might be something along the lines of Bush v. Gore.
Dec 14- Electoral College votes. This can be no more than 41 days after the election (1887 Electoral Count Act), so Dec 14 is another hard and fast date.
Basically it HAS to be decided legally by Dec 8th, and if the states haven’t certified their winners by then, presumably they’re not counted on Dec 14th.
If at that point, no candidate has a majority of electors, then it goes to the House of Representatives to elect a President.
I can envision Trump dragging out the timeline to subvert states electoral college appointments and votes through state courts and SCOTUS. Army of lawyers, Barr and the JD, media support, massive street actions from supporters, etc. Maybe the House of Representatives ends up being engaged, as described. Trump sues congress, again relying on the SCOTUS,
Then, on Inauguration Day, Biden gets sworn in at a location away from the White House, once the Secret Service belongs to him and they can take action.
A “constitutional crisis” is actually the answer to your question, I think. It’s just a way of saying that there are questions nobody really has any idea what the answer is, because we’ve never run into the issue before. The Constitution isn’t airtight; there’s lots of weird stuff that can happen. Most of that stuff has never happened before, and you can easily imagine scenarios where we’d end up in uncharted territory and lots of stuff can go wrong. As I went on about at length in the other thread, I think that’s at least more plausible than most others seem to.
I would also say, though, that in your scenario as you laid it out, it’s a much simpler question, because of this part:
If it can be definitively stated, as you do, that the Electoral College has voted for Biden, and that’s just a fact, then that’s it, no crisis, Bob’s your uncle. The crisis part would come in well before that, where the (very hamhanded and transparent, but still not taken very seriously) machinations of Trump and his bros would (if successful) lead to some fig leaf of a genuine controversy over which states certified which results, which would then be litigated, resulting in at least an interim period of people asking for emergency stays and suspensions of this action and that action. And I mean, if the Supreme Court actually grants some kind of injunction as to the actual electoral results, as they did in 2000, that’s your crisis, notwithstanding that people will obviously think it’s total partisan bullshit. If there are two factions in Wisconsin arguing that they are the duly appointed electors, and they have different voting results, and the Supreme Court reviews the controversy, that’s the kind of thing where genuinely who the hell knows what would happen. Why wouldn’t the whole thing be thrown into utter chaos with no immediate end in sight, other than the fact that it hasn’t previously gone that way? It’s all well and good for us to say “well, there are rules for this kind of thing. We would simply do Y and Z,” but I mean, look around. There are rules for all kinds of things, and yet here we are in 2020.
That is more what I am imagining, and the reason for my original OP. We really don’t have a playbook, because we have always ASSUMED that one candidate would concede defeat and everything moves on per protocol. But, we are no longer assured of that outcome, because the current occupant is all about subverting norms. And we have seen that what we expect as guardrails have also been flouted (Emoluments, Hatch Act, temporary cabinet appointments, and on and on…) We expect checks and balances, and we have seen how that has worked out.
Even if we had iron-clad written procedures for every eventuality, once enough members of the state legislatures, state governors, state AGs, congresscritters, Federal AG, or federal judiciary up to and including SCOTUS are willing to bend / break the rules / laws / norms to achieve their partisan goals, well then the rules / laws / norms will be bent / broken and there’s simply no way to say what will happen next.
The fact we don’t have ironclad procedures for every eventuality just means the threshold to enter uncharted = totally unpredictable territory is lower. Certainly low enough that we may be there come Wed.
Clearly Trump’s playbook is to try to delay counting and to delay certification of election results in as many states as possible as long as possible. When the clock gets short of time, desperate stuff will happen and that’s when the most ruthless operators carry the day.
The truly decisive vote that gives a D president, a D congress, and a lot of D statehouses is the thing that will give even red-state politicians a pause before they throw in their lot for the subversion of the will of the electorate in favor of an incompetent wannabe tyrant.
If on Wed the Trump brand is dirt and “You’re fired!” echoes throughout the land, even the most reactionary pols / judges in the battleground states might realize which crowd of pitchfork-bearing citizens they should be more scared of: the MAGAs or the majority.
I’m bookmarking this post for the next time some USian Doper goes on about how the ambiguities in the Westminster parliamentary system could never arise under a proper written constitution.
Suppose, come January 20, we have two people claiming to be President. They both start issuing executive orders, other kinds of orders, making appointments, etc. Including each ordering the arrest of the other.
But presidents don’t carry out their orders with their own hands. Whoever actually carries out orders will choose whose orders to follow. Will the Secret Service or Park Police arrest Trump or Biden? Will the military get involved, and if so, whose orders will they follow?
We saw stuff going down like this following the coup against Gorbachev in 1991, when some platoons of the army took one side and some platoons took the other side – some firing on the protesters massed in the streets, some firing on the “Russian White House”.
See also the Avignon Papacy and the Western Schism of 1378 to 1417.
