I have addressed this a couple of times however Sham has done a good job of summarizing a part of the technical and I am going to summarize the end game as I see it.
It is first important to recognize that in accordance with the Constitution, a Vice President elect was certified and is eligible.
Then, the significant language of Amendment 20, Section 3 is: [I]f the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified . . . .
So where we are today is pretty clear—we have an eligible person certified as Vice President—Joe is and has been since January of 2009, Acting President.
The succession provisions, getting Joe out and a legitimate person in as a result of the 2008 election is also very tight. To get the Vice President in as President under the 25th amendment, you need to have removal, death, or resignation of a President. You can never get that with Zero because he isn’t President—he wasn’t eligible.
Article II, Section 1 of the Constitution is also pretty tight—there are actually three qualifications to hold the office of President: Age 35; 14 year resident; and natural born citizen. Suppose a person who was only 34 years old was certified as elected? Any doubt that he would not be eligible and could not hold the office? Not likely.
And the process of choosing the person from the electoral college vote is also pretty tight. To get an elected candidate, you need to get an individual who is on the list of having received the most votes. In the case of 2008, that question is pretty simple—the only other person who got votes is John McCain and he isn’t eligible to hold the office either (for the reason that he was born in Colon Panama which is not now and never has been a part of the Untied States).
Where you get from here is a significant question of Constitutional Law.
My own opinion is that the Court would infer from the last two clauses of Section 3 of the 20th Amendment, a power in Congress to decide how to choose the President. And that view is in part supported by an informal opinion from one of the DC law firms to the leadership of the Dem Congress in the 111th Congress.
The possibilities discussed were: Simply elevate the VP; move to the line of succession; or look further back to Dem primary votes. Each of those possibilities identifies a different person and there was no consensus. Although my own view is that if that had ever come to fruition, we would have had our first woman President and her name would have been Nancy. Didn’t happen. Too late to reconvene the 111th Congress at this point. Who knows what the Republican’s would do today if asked.
There are several messages in this—one of which is that in any election in which the President is decided by more than one electoral vote, an elector who is not in a state that mandates his vote with criminal penalties should be encourage to cast his one vote for the VP on the winning ticket for president.
Plaintiffs attempt to subvert this grant of power to Congress by convincing the Court that it should disregard the constitutional procedures in place for the removal of a sitting president. The process for removal of a sitting president—removal for any reason—is within the purview of Congress, not the Courts.—U.S. District Court Judge David O. Carter, Barnett et. al. v Obama, et. al., 10/29/09
I have heard that argument and I do not give it any weight. It is much like the argument in the opinion to the Republican's by the Harvard law professor and the hired lawyer that McCain was eligible.
The Carter opinion was written by a Perkins clerk on leave to work as a clerk for Carter for the purpose of massaging the result in the Carter case which Baer viewed as a real threat. It is just more self serving argument which isn't going to go anywhere in the real world if this ever gets to issue before the Supreme Court.