Wacky Congressional/Constitutional loopholes... Are they technically correct?

Factual Questions
1

This blog post lists what they claim are technically Constitutionally correct (but extremely unlikely) loopholes by which, among other things, the House of Representatives could have over ten thousand members, Congress could establish what’s basically a recall election for the President, a coup could be made by just two House members, and others.

I care about as little as the writer whether these scenarios could actually happen. I’m more interested in whether they’re technically able to happen.

Constitutional folks?

2

#8 is completely true. So what? Any expansion of the House would just dilute the power of any given Rep, so they would do it only if we suddenly gained a few more states.

#5 doesn’t work, because the House isn’t in session when those speeches are going on. They are just reading things into the Congressional Record, for the record.

#3 is mistaken. The House votes from the top 3 candidates, not the top 5. Other than that, the scenario is possible. It would be Maine or Nebraska that gave someone 1 electoral vote, of course. Can’t trust a Cornhusker!

#6 is also a “So what?” Any law passed by Congress would still have to get past the Supreme Court, which would toss such a law in an instant. Probably.

3

On what grounds? The Supreme Court can’t simply say “we don’t like this law”. It has to be found unconstitutional and the majority has to give a legally coherent explanation as to why.

4

Isn’t No. 4 a “so what” also?

I thought that the Pres acting as a “lame duck” during the (usually short) transition period was a matter of manners and fair play rather than law. If Congress pulled this trick, the Pres would presumably no longer feel that manners and fair play required him or her to step back. Would there be any legal barrier to the Pres just advancing his agenda in full regardless of the election of his successor?

5

On the basis that the electorate is not a “body” under the meaning of the amendment.

6

1. A non-member of the House is elected Speaker.. True to an extent. The Constitution does not state the obvious. For example, the Constitution doesn’t say that laws are passed by majority vote. It is merely assumed because that’s the way legislatures have always done it. The same with the Speakership. In all modern legislature, the officers are chosen from the ranks of the membership. Therefore, the Constitution doesn’t have to state that they must be members of the House.

However, if the unusual circumstance happens that somehow the Speaker isn’t a member of the House, there is no body that will challenge the result. The President can’t, nor the Senate. It could be taken to the Supreme Court, but it is very likely that the Court would rule it’s not their business to enforce House rules.

2. The Vice President casts the deciding vote to re-elect himself. True, and in a certain sense, similar things have happened. A sitting Vice President can be the one who heads the Senate that certifies the Electoral College totals and determines who is President. Bush the Senor did just that. And, it was Al Gore who was heading the Senate when the 2000 electoral vote totals gave the presidency not to him, but to Bush Jr.

3. A presidential candidate wins with just one electoral vote. Considering that the last time the Senate got involved in this process was 1876, we’re talking about a very rare procedure. However, it is possible that if the third highest electoral vote getter was one vote, they could be elected (it’s the top three and not top five). The question is how can the third place get only a single electoral vote without the other top two contenders getting a majority.

4. The President Could Be Made an Instant “Lame Duck” Not true. Again, the Constitution doesn’t state the obvious. A law could be passed to move the Presidential term to start, some other time in January, but an attempt to give the President a one day term would violate Section II, Article I which states the President has a four year term. The Supreme Court would over turn any instant lame duck law.

5. Two House Members Could Stage a Coup. Nope. It takes a quorum of the House which is a majority of members. Those two House members could claim they’ve elected a new speaker, but I doubt the rest of the House would go along with it.

. Congress Could Allow the President to be Recalled Nope. The meaning of the amendment is clear. If Congress attempted such a feat, the Supreme Court would immediately reject it. Besides, such a law would have to be passed over the veto of the President which means 2/3 of both houses. If the president is so unpopular, why not simply impeach him?

7. Congress Can Basically Give Three Electoral Votes to Whomever It Wants Now we’re just getting silly. The Constitution isn’t a game of Mother May I. There’s the idea of intent. It is obvious the the 23rd amendment refers to the City of Washington DC. If that city becomes a state, the 23rd amendment would become meaningless. Congress couldn’t declare the left side of the House chamber to be The District constituting the Seat of Government. Hey, the second part of the amendment states that The Congress shall have power to enforce this article by appropriate legislation.. Couldn’t Congress simply say in legislation that the District has no vote or that it must select Republicans as electors? Again, I doubt the Supreme Court would permit such a reading.

8. The House of Representatives Could Have 25,000 Members. There were twelve amendments that were voted on when Congress first convened and only ten were originally passed by the states. The eleventh of those was eventually passed as the 27th amendment. It is very possible that the 12th one could also be passed which would actually give the House somewhere around 25,000 members.

7

You’re referring to the counting of the electoral votes. The blog scenario involves Senate election of a vice-president after the votes have been counted, and it has been determined to everybody’s satisfaction that no candidate received a majority of the electoral votes for vice-president. This has happened once in American history, in 1837.

The blog is in fact incorrect. The Constitution requires that the winning candidate (in a Senate election) receive the vote of a majority of the whole number of Senators, and the Vice President is not a Senator. If the Senate vote were 50 for Smith and 50 for Jones, and Vice-President Jones attempted to assert a tie-breaking vote, it would be trivially easy to defeat it; one of the Smith supporters could change his vote to an abstention, making the vote 50 for Jones, 49 for Smith, and one present–no tie, but still no election.

Simple–270 electoral votes for Smith, 269 for Jones, and 1 (possibly from a faithless elector) for Johnson. In such a case the House (not the Senate, and it last happened in 1825, not 1876) chooses from among the top three finishers, and Johnson goes into the balloting on a even footing with Smith and Jones. He might or might not have any support in the House, but he’s eligible.

8

#3 269 to 268 to 1
Notice for this to work, the House delegations (each state gets 1 vote) would need to be split in a way such that no candidate gets more than 25 votes and the candidate with 1 electoral vote is seen as a compromise candidate.

#5 Could parliamentary law allow a thing to happen? Could two people than elect a new speaker? Actually, the point is moot. Upon the death of both the President and Vice-President, the Speaker *at the time of their death *immediately becomes President. For the Coup to work, the new Speaker would have to have been elected before the death of the Pres and VP. Robert’s Rules (which does NOT govern Congress) stipulates that once a quorum is established, it is presumed to continue until the absence of a quorum is suggested so under RONR, a two person coup may be possible. However, with the Constitution specifying that a quorum is a majority and if evidence is present that less than a majority is present (one can be present and not voting), then despite any rules to the contrary such action is unconstitutional.

9

Here’s an interesting one I once heard. Suppose Congress decides that the Supreme Court is abusing its authority and thwarting the will of the legislature. So Congress passes a law saying that a two thirds majority of the Supreme Court is required to overturn any law passed by Congress. (The Constitution doesn’t say anything on the subject and there are precedents for supermajorities.)

The justices are naturally upset and in a 5-4 decision they rule that the new law is unconstitutional and overturn it.

So is the law in effect or not? According to the law, the Court requires a 6-3 majority to overturn a law. According to the Court, that law was invalid so they only require a 5-4 majority to overturn a law.

10

At the time of the adoption of the U.S. Constitution, it was common for the British House of Commons to choose governmental officers who were not members of the Commons. Specifically, it was quite common for the prime minister not to be a member of the Commons.

11

Speaking of strange things included in the Constitution, I’ve always wondered about Article VII, ratification. How could the Constitution, which was not yet in effect, determine how itself would be ratified? If it wasn’t yet law, how did it have any power? (When I asked this question in school, many, MANY years ago, my teacher didn’t understand my question, and I’ve been confused about it ever since.)

12

Perhaps because the proposed constitution, before ratification, was in effect a proposed treaty between sovereign states. A proposed multi-lateral treaty will include a clause on how it is to be ratified by the states party to the treaty.

13

Under the US system, the equivalent would be cabinet members, who are rarely sitting elected officials.

14

Hmm… your version is probably closer to the historical truth. My intial thought was coming at it the other way, that the US constitution was an attempt to ‘bootstrap’ a new legal tradition that didn’t depend on prior law.

In that way, the final power of the ratification clause would be via the respect and acceptance of the people and institutions who would live according to that constitution. The writers are laying out a proposal, and include their criteria for ‘We will test that the people approve this proposal if we reach the following conditions.’

If the ratification requirements were far too low and obviously didn’t mean anything about real public approval, then people would have resisted actually following the new constitution. It doesn’t seem as if that has happened.

15

Yes, but the British equivalent of the Speaker isn’t a cabinet minister, it’s . . . the Speaker. And I don’t believe (although I don’t really know) that the Commons ever could or has chosen a non-member as Speaker.

That said, there is little question about the power of the US House to do so; non-members have received votes as recently as 1997, and the votes were accepted and tallied without dispute.

16

As a matter of legal formality, the Prime Minister of the United Kingdom is chosen by the monarch, not by the House of Commons, and can be anyone at all. However, the monarch in practice must choose a person who can get money bills passed by the House of Commons, and in practice (usually) that person will be the leader of the majority party (or coalition) in the House of Commons. In particular, the PM still could in theory be a member of the House of Lords, but the last peer to be PM was Alec Douglas-Home, who was the Earl of Home when appointed as PM, but renounced his title and stood in a by-election for the Commons shortly after his appointment.

Furthermore, the House of Commons does not appoint other cabinet officers either: they too are appointed by the monarch, on the advice of the prime minister, and can (by convention) be members of either house of Parliament. The only significant offices that the House of Commons appoints are the Speaker and the Deputy Speakers, whose major role is to preside as chairperson over the house.

17

This gets into a discussion of whether the states were sovereign under the Articles of Confederation, which was still in effect. I’m going to duck that entirely.

Every contract has clauses in it about how it will be accepted. By signing the contract the parties accept those clauses. That’s what the state legislatures did when they ratified the Constitution. But that didn’t bind any state that hadn’t voted for it.

New Hampshire became the ninth state on June 21, 1788, the number needed for ratification. Virginia and New York were right behind, in June and July of that year. But North Carolina didn’t ratify until November 21, 1789 and Rhode Island not until May 29, 1790. They weren’t states until then and the Constitution didn’t apply. I don’t know exactly how they were treated legally by the new country. That would be an interesting question to research.

But there’s nothing mysterious about the Constitution. You enter into a contract when you sign it. That works at all levels, including national.
WTF? Rhode is not in the spell checker? Rhode!?!

18

That’s why it took so long for us to ratify, couldn’t figure out how to spell it.

19

Even if they lacked full sovereignty, they still had enough to enter into multilateral agreements – and still do. So, for example, if the 13 original states wanted now to set up an “Original States Commemoration Co-operative”, they could send delegates to a meeting in Philadelphia, those delegates could draft an agreement setting up OSCC, and the agreement could include a ratification clause saying that it became effective when ratified by legislatures of 9 of the 13 states. That ratification would be binding on the states ratifying the agreement, and not on the other states.

20

From what I’ve encountered, North Carolina was the usual demogtraphic mix of late-1780s politics, generally favoring the new proposed system but with a healthy smattering of anti-Federalists. But there was a strong strain of sentiment regarding the lack of a Bill of Rights here that was less emphatic in most other states than it was here. The rather complex debate is often reduced to a generalization that we Tarheels proudly held out against ratification until there waqs a Bill of Rights in place.

Just FWIW