Citing the quo warranto provision of the judicial code does not address the question.
I could similarly cite the code provisions authorizing the convening of grand juries and the issuances of indictments for criminal offenses.
But that doesn’t mean that the provision authorizing the issuance of indictments by grand juries applies to a crime committed by the president.
Under the Constitution, only the Congress can prosecute a crime (assuming it is a high crime or misdemeanor) against a sitting president.
So the question of whether a federal court has the power under the Constitution of issuing an order that a president-elect is not qualifed to take office is not answered by merely citing the existence of a quo warranto provision in the code.
The question remains as to whether the Joint Session of Congress referred to in the Constitution is the determiner of qualification of a president-elect. To my mind, the better answer is yes, based on the architecture and language of the Constitution.
I recognize this may prove inadequate. The impeachment and conviction power of the Congress proved inadequate in the case of a sitting president who committed the crimes of perjury and obstruction of justice in a civil suit against him for sexual harassment.
Where the Congress is composed of supporters of the president and spineless members of the other party, there is no adequate remedy for the people for a corrupt or fraudulent president.
I don’t have a better answer than the one the framers came up with. Like them, I would be reluctant to place in the hands of judges the power to decide who should be president or to remove a president.
And before anyone mentions Bush v Gore, that was a completely different set of constitutional issues.
I was citing procedure for the selection of a NEW President, NOT the removal of a sitting President.
Take the case of the natural-born citizen issue that I previously cited.
The Presidential term ends at noon on the next January 20th following the general election. If a candidate [even a sitting President] were deemed in Congress to be unqualified [by not being a natural-born citizen] during the Electoral Vote Count process, then he WOULD NOT be eligible to be President as of 21:00 [and one second].
Of course, that affected candidate who was deemed ineligible by Congress [even a sitting President] would obviously go to court before the inauguration - since Congress HAS NO right to determine what a natural-born citizen is under the Constitution [it IS NOT within the powers granted to Congress]. That is the province of the courts. AND, it WOULD go all the way to the Supreme Court.
OTOH, if Congress certified the candidate in question [natural-born citizen-wise], the losing candidate could petition for quo warranto and there is precedent for this [since the losing candidate has a personal stake in the outcome]. It would then go to the courts - again all the way to the Supreme Court.
If the Supreme Court ruled that the winning candidate [who WAS NOT a sitting President] was ineligible, then he WOULD NOT be allowed to take the oath of office at noon on the 20th of January following the general election. This IS NOT a ruling against a sitting President and WOULD NOT result in the Supreme Court removing a President from office.
If the affected candidate WAS the sitting President, and was deemed ineligible [although certified by Congress], then he could start to take the oath of office at noon on the 20th of January following the general election. BUT, as of 12:00 [and 1 second], he would NO LONGER be President AND he WOULD NOT have completed the oath of office. THEREFORE, the Supreme Court ruling would stand and he [as NOT President] would be ineligible. THEREFORE, the Supreme Court WOULD NOT have removed a sitting President, which is a power NOT granted to them. BUT, the [former] sitting President would be excluded from taking office for a second term.
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Under the Constitution, only the Congress can prosecute a crime (assuming it is a high crime or misdemeanor) against a sitting president.
Quo warranto isn't a crime - it is a civil action ...
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So the question of whether a federal court has the power under the Constitution of issuing an order that a president-elect is not qualifed to take office is not answered by merely citing the existence of a quo warranto provision in the code.
I beg to differ - as I have demonstrated, above ...
The question remains as to whether the Joint Session of Congress referred to in the Constitution is the determiner of qualification of a president-elect. To my mind, the better answer is yes, based on the architecture and language of the Constitution.
Show me in the Constitution or United States statutes where that is specified, other than vague terms such as failed to have qualified. Also, show me where the Constitution specifies that Congress can make determinations on the meaning of phrases such as natural-born citizen in the Constitution. Also show me where the Supreme Court is prohibited from making determinations of the language of law [the Constitution being the supreme law of the land].
I recognize this may prove inadequate. The impeachment and conviction power of the Congress proved inadequate in the case of a sitting president who committed the crimes of perjury and obstruction of justice in a civil suit against him for sexual harassment.
I agree with you on this - I did not care about the sex, but the perjury and obstruction of justice were DEFINITELY impeachable offenses. I know a former DEM Senator who feels HORRIBLE that he voted to acquit - he voted party over his principles. I told him that I have NO sympathy for him and that he would just have to live with it ...
And before anyone mentions Bush v Gore, that was a completely different set of constitutional issues.
Agreed. It was a straight 14th Amendment Equal Protection case. 7-2 decision with Ginsburg and Stevens [naturally] dissenting. Those chicken shits put politics above the Constitution. Breyer and Souter made the courageous [and correct] decision to concur on the Equal Protection violations.
If it had been the other way around [Gore v. Bush], I suspect it would have been a 9-0 decision in favor of Gore.