Replies

“I don’t believe your #2 is supported by the language of the Constitution as amended. Specifically, what language supports your assertion?

I don’t believe the Constitution gives any authority for an election to be declared null and void, or a new election to be conducted. Where do you think it does?

But I can see the application of the 25th Amendment that you suggest. I had always assumed the language there (removal from office) referred to impeachment only.”

For other FReepers, this concerns Post #136 ...

That is exactly the problem ... there have been NO provisions made for such a contingency - either in the Constitution or SPECIFICALLY legislated in U.S. Law. These are uncharted waters for something that slipped through the cracks.

FIRST, A PRIMER ...

The ONLY provision I have found lies in United States Code Title 3, Chapter 1, Section 15.

Legislation by Congress is provided for in the U.S. Constitution Article I, Section 8, Clause 18:

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Anyway, USC Title 3, Chapter 1, Section 15 states that objections may be made during the electoral vote count in Congress on 6 January. It does NOT state what the nature of the objections may be ...

Every objection MUST be made in writing AND signed by AT LEAST 1 Senator AND 1 Representative.

The House and the Senate then adjourn to make a decision. There is NO mention in the rules for how the decision is made - but it is probably a vote.

Then, they come back and continue the electoral vote count.

HOWEVER:

NO WHERE in the U.S. Constitution is this method of procedure mandated. USC Title 3, Chapter 1, Section 15 is just a law that Congress enacted.

Also, Section 15 DOES NOT specify as to how a candidate’s eligibility would be determined (if such an objection were allowed).

IF the House and the Senate vote the objection on party lines, despite clear and convincing evidence that a candidate is not qualified, there is NOTHING to prevent them from doing so.

This has NEVER been tested as to constitutionality. SCOTUS MIGHT declare this process unconstitutional under the equal protection provisions of the 14th Amendment.

SO MUCH FOR THAT ...

Now, I based my scenarios on the following:

The Constitution, as written
USC Title 3, Chapter 1, Section 15
Blackstone’s Commentaries on English Common Law
The Founding Fathers’ concept of “original intent”
Common Sense (human common sense, not Thomas Payne’s)

If SCOTUS were to take the case and declare that Obama was ineligible, there is then the question of remedy (my scenarios).

In scenario #2, Obama has been certified, but not sworn in.

What would SCOTUS do? Citizens DO NOT LIKE fixed contests, so there are 2 remedies:

Order a new GENERAL election (which would be time-consuming AND expensive), or

Declare the election null and void (I mean by this, the electoral vote count) and then go back to scenario #1. This would be the easiest and most equitable solution of the two.

The reasoning is the concept of the “fruit of the poisonous tree” ... Obama’s DQ also DQs his electors and their votes in the Electoral College are also DQ’d.

SCOTUS NEEDS to put itself in the Founding Fathers’ shoes ... what would they HAVE done if this situation arose in their time? This is the concept of “original intent”.

SCOTUS NEEDS to look to the Constitution and legislated U.S. Law and they are BOTH extremely lacking in specific language.

The ONLY bit of help is in Article, Section 1, Clause 3 where it specifies “natural born” citizen. However, it is not clearly defined anywhere. Thus, SCOTUS NEEDS to go back to “original intent”. What did the Founding Fathers mean by “natural born”?