This seems to pretty definitively answer the question, I think.
How about Shodan’s other point, i.e., could the President be arrested for an act of fraud, as he described?
Thanks for this. Very interesting. But I’m not sure it makes the point you think it makes. In the last paragraph it states:
Also, some of the citations go to appointments being improper, but none address the basic qualifications of the individuals. For instance, a judge from a different jurisdiction might have been involved, but he was still a judge.
I think it would all come down to political will. Congress needs to have the will to remove the president because even if it came out after the election that he/she was not qualified, they still have to remove him by the proper means. If Congress doesn’t or cannot, the guy stays in office.
As for his laws, I think that in the immediate future, you may have some number of people refuse to follow some laws they consider illegitimate. The authorities will arrest them and punish them, and the defendant will sue that the law was unjust. It will ultimately be up to the courts to weigh in on whether a law passed by this president is enforceable or not, and it probably will go all the way up to the SCOTUS. That’s how I see it playing out anyway.
People who have issues with Obama right now have no leg to stand on. They can sue, but every judge in the land will throw out their case. Every law Obama signed is valid and enforceable. I don’t know how many judges will refuse to punish someone for breaking a law if Obama was found to be unqualified, that’s a pretty interesting question.
Just for the record, my discussion has nothing to do with Obama.
Yes, but I’d say there he doesn’t have a “presidency” at all. It’s simply a fraud. That’s what I think a mechanism other than impeachment is needed. Impeachment gives the fraudulent act a degree of legitimacy it doesn’t serve. The guy would be simply be a con artist, not a sitting president. The same way as me posing as a doctor or lawyer or a 4-Star General would not make me a doctor or a lawyer or a 4-Star General.
Assuming that act can be tied to a particular crime, yes. See post 19.
The Ryder decision hinged on the fact that he had challenged the validity of the judges’ appointment before they decided his case, not retrospectively, and was therefore entitled to a decision on the merits of that challenge, and because his challenge was timely, he was entitled to a new hearing before properly appointed judges. In the case of a president who belatedly announced he wasn’t qualified, Ryder would be applicable to laws he signed or decisions he took after the announcement, but not to those done under color of the office before that date.
There are decisions that do address basic qualifications. For example, Buckley v. Valeo held that the membership of the Federal Election Commission was unconstitutional as a violation of separation of powers (Congress directly appointed officers of an executive branch agency); however, “the Commission’s past acts are accorded de facto validity and a stay is granted permitting it to function under the Act for not more than 30 days.”
In other words, the members of the commission were never “really” members because their appointment was a direct violation of the appointments clause in the Constitution, but the acts performed while they illegally occupied seats were nevertheless valid.
In the North Carolina state case of People ex rel. Duncan v. Beach, Beach was elected a state district court judge, although he was already past 70 years of age and under North Carolina law was not eligible. When somebody finally noticed a few years later, he promptly resigned and the governor filled the vacancy. The candidate who had lost that initial election filed suit and argued that as the sole candidate who actually met the legal qualifications, he was entitled to the office. The state supreme court shot him down: Judge Beach was not legally qualified to be a judge, but he had acted as de facto judge, so his resignation created the vacancy that the governor was entitled to fill. (And no, his decisions while on the bench were not overturned either, even though he had never “really” been a judge.)
Exactly. We don’t get “perfect” systems in human government. There isn’t any magical guarantee that courts rule correctly, or judges never have biases, or policemen only shoot real criminals.
All of these are problems. All of these have oversight practices, to try to rein in the worst excesses, but there is no mechanism – there can be none! – that assures that every court trial results in true and actual justice. Miscarriages happen, and all that a guy who has been wrongly convicted can do is…go quietly to prison.
Bummer, but there it is.
That’s where you’re wrong. There is a presidency and here’s why:
For highly political and important positions, especially of elected officials, removal of them must follow a very rigorous procedure even if the person is illegitimate. That has to happen because of one main reason: Legitimacy
Without a transparent procedure, there is too great a chance that an elected official can be removed due to improper political favoritism; abuse can and will occur, and the system breaks down as a result. It is MORE important that we allow the law to follow its correct course rather than take an easier and possibly more emotionally satisfying result like kicking the guy out on his ass with a big boot. Because elections and government is only legitimate so long as the people agree to be bound by its rules, when violations occur, people want to see that the rules are followed even more strictly rather than bend or break them for a photo op.
I think I know how you feel in a hypothetical illegitimate president because I feel the same way about Bush. You want to be able to say that if the i’s are dotted and the t’s aren’t crossed, the application is illegitimate and so is everything that person has done. Its tempting to go that route because you probably don’t want to reward some scofflaw by upholding work he produced, and you don’t want to encourage others to do the same. You want to totally remove him from the process and forget about the years he’s been president, roll back the clock to before the inauguration, and auto-repeal every law he’s signed with the push of a button.
Well the real world doesn’t work like that. You cannot simply undo the work of a president that easily. Laws he signed takes shape in thousands of different ways affecting millions of people. Do you think people who, for example, have health care now because of Obamacare simply will throw up their hands and stop getting chemo, stop getting medicine, and crawl out of the hospital bed simply because Obama has been declare illegitimate? That’s not going to happen no matter how much you many think the world should work like that. In the real world, if such a thing should happen to Obama, politicians will do the tedious chore of repealing each and every provision of Obamacare one by one. They may be sued or stopped, and you can bet a federal judge simply won’t say “Well Obama was apparently illegitimate, so that means this law is to”. In the real world people will want to keep their health care and some judges might interpret the law separately from its origin. They could say, “So what if Obama was unqualified? The law was still debated on in Congress and people still voted for it”. You may not agree with that, but there will be plenty of people who do
So you have to legitimize the process with an impeachment, there’s no way around that. Otherwise, Obama will keep walking into the Oval Office and keep signing laws, he will keep riding Air Force One, he will keep living in the White House. Who’s going to stop him, you? You could try to storm the White House with a copy of the Constitution stapled to your chest and you know what will happen? The Secret Service will shoot you. Because that’s not how you get rid of a president. You vote him out or you impeach him, or else nobody will care that he’s still doing presidential things in the president’s house.
Think of it this way. Kim Davis went against the SCOTUS, the law of the land, in denying marriage certificates. Rightfully, she shouldn’t be allowed to be the county clerk anymore. But she properly sued and appealed. The courts that ultimately found her guilty of contempt did not give her position any legitimacy. In fact, by hashing it out in a transparent matter, it showed how illegitimate her position really was. And as an elected official, there was only 2 ways of getting rid of her: recall or impeachment. She still works there to this day, drawing her $80000 a year salary. I may not like it, but the law is clear on how to remove her. And it is clear on how to remove an illegitimate president. You impeach him. And if there is no political will to do so, then he stays as president
Courts routinely defer decision on certain issues because they are “political questions” that are outside the domain of the courts. I’m pretty confident that the courts would defer to the constitution to resolve this constitutional quandary, and that means following the constitutional procedure for removal for office - impeachment.
I’m also unclear on what you mean about “guys with guns would go remove” Scarface. Are you presuming that a gangster was elected, but then exposed as a no good dirty crook? Because we have precedent for that, and nobody with guns removed Nixon from office. It was political pressure (in the form of almost certain impeachment) that caused him to resign.
What’s the difference between that and a military coup d’etat?
They’d be good guys with guns. It makes all the difference.
Hey, it works in Turkey.
Regardless if fraud was involved, when the Congress certifies the vote of the Electoral Congress then the winner is the POTUS, as defined in the constitution. There’s no method available to invalidate that constitutional process and anything you have proposed would be unconstitutional in the same manner. But there is a constitutional method to fix it, and that’s impeachment.
From the point that Congress certifies the vote of the Electoral Congress to the moment of impeachment (or removal from office along the lines of the 25th amendment) the Presidency is intact. No other authority is available to remove a sitting president and it’s not clear why you’d need one.
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They would be removing someone who has no legitimate claim to the office.
I fully understand this point, but it suffers from the problem of logic, i.e., someone who does not meet the qualifications in the Constitution canNOT be President. I agree that we are left without a mechanism to handle this and that impeachment might be the best we can do. But that, too, is problematic as it gives legitimacy to the fraud that was perpetrated.
You misunderstand me. Nixon resigned. If he didn’t, he wold have been impeached and the Senate would have voted to remove him from office. There was no question that he was, in fact, a legitimate President. Impeachment is the correct procedure for removing a sitting President. I the hypothetical, the person in question never was, in fact, President, as per the constitution.
The Scarface example was offered to simply the issue and put someone in the office that clearly had no right to be there. Demonstrating that impeachment there would not be what people would be arguing for.
I don’t see how any of this applies top the discussion. It’s not a question of the courts “getting it right” with what is before them.