Congress can make a law regarding how a President shall be chosen if both the VP and President Elect are not qualified. And Congress can count the electoral votes. Both those things are specifically mentioned in the Constitution. But I don’t see anywhere in there that it gives Congress the authority to determine whether any specific President-elect HAS “failed to qualify”. It doesn’t give that job specifically to anybody.
And to even BE the “President elect” the candidate had to have had the electoral votes counted and met the necessary number of electoral votes. So the 20th Amendment in effect says that if a candidate made it through the entire Constitutional process (states’ electoral votes and the counting of such by Congress) and has STILL “failed to qualify”, then the VP elect shall “act as President” until a President shall have qualified. IOW, the provisions of the 20th Amendment are for those cases when somebody has made it through the entire process and has still “failed to qualify”.
It doesn’t specifically say who is to determine whether the “President elect” (who was already declared by Congress to be the electoral winner) has “failed to qualify”.
The judiciary is specifically given the duty of deciding all “controversies” arising out of the Constitution or the laws. That means if the Constitution doesn’t specifically say who is to determine/judge the issues of fact or law in cases involving the Constitution and a controversy arises over that issue, it is the judiciary’s job to decide the matter.
And that is the case with Presidential eligibility. The Constitution doesn’t specifically give the job of determining Presidential eligibility to any branch of government or any specific body. It would definitely be outside the expertise and authority of any other body to decide what the Constitutional term “natural born citizen” means. That is definitely an issue for the judiciary, since it involves INTERPRETING the language of the Constitution.
And SCOTUS has never decided that eligibility is outside their jurisdiction (as if it were a “political question” because the Constitution had delegated the duty to another branch of government). Instead, they have evaded their responsibility by claiming that there WERE NO “controversies” because none of the cases that came before them were worth their time.
The lower courts claimed there were no “cases” because nobody who brought a case had “standing”.
So the problem we’ve had stems around the refusal of SCOTUS to acknowledge that there is a “controversy” being brought before them.
The "necessary and proper" clause gives it to Congress.
(I would also point out that the counter of the votes usually gets to exclude votes improperly cast, but I do acknowledge that this would have to happen before someone ineligible becomes President-elect.)
We have come to a very dangerous situation in this country when even patriots think it is more proper that some unelected group of old people should decide matters like this rather than a larger body of men elected by, and answerable to, the people.
ML/NJ