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.
Obviously. I was making an analogy between the exclusive grant of criminal prosecution power to the Congress under the Constitution and the exclusive grant of power to qualify the president-elect to Congress under the Constitution. If Congress determines that a president-elect is not qualified they are not convicting him of a crime. But that is not relevant to the analogy I am making, which has to do with the exclusive power of Congress in both circumstances.
Just as the mere existence of a grand jury procedure does not take away Congress' exclusive power to prosecute the president for a high crime, neither does the existence of a quo warranto procedure take away Congress' exclusive power to determine the qualification of a president-elect.
In the hypothetical you posited as to the losing candidate aggreived by an arguably wrong determination of natural-born citizen by the Congress, I disagree that he would be required to jump through the quo warranto hoops in order to bring his case as to the proper interpretation of the meaning of "natural-born citizen" before the federal courts. He would have standing to bring a case directly naming the Congress as an adverse party denying him a constitutional right in depriving him of office based on an unreasonable interpretation of "natural-born citizen".
If a court were to determine that the aggrieved candidate is likely to win on the merits and the other conditions for a preliminary injunction are met, he could promptly obtain a preliminary injunction to prevent the other person from being sworn in as president in order to preserve the status quo. In that case, the provisions of the Twentieth Amendment and the US Code would determine who is president pending the outcome of litigation.
If the aggreived candidate ultimately wins in court, the proper remedy would be a court order directing the Congress to apply a corrected definition of "natural-born citizen" under the Constitution in Congress' determination of qualification of the president-elect. However, the court could not go further than interpreting the legal term, because anything beyond that, such as second-guessing a finding of fact by the Congress as to a president-elect's age or place of birth, would be to usurp the role granted to Congress under 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].
Clearly you failed to even read my posts you are responding to. I did not claim that "the Supreme Court is prohibited from making determinations of the language of the law." I SAID THE EXACT OPPOSITE!!! The Supreme Court under the doctrine of judicial review has FINAL authority in interpreting the meaning of legal phrases under the Constitution. Just as the Court would have the power to distinguish "low crimes and misdemeanors" from "high crimes and midemeanors" so it would have the power to determine the meaning of "natural-born citizen." (I am annoyed at having to retype this because you didn't bother to read what you responded to.)
As to Congress determining in the first instance what a Constitutional phrase means, this happens as a regular course of action. To pick one out of many examples, when Congress decides to regulate something under the Commerce Clause, it first decides whether it has the power to do so based on what it considers the term to mean. The Supreme Court comes in a later point in time when a legal challenge is made and then second-guesses what Congress determined, having the final say.
As to whether Congress has exclusive power to determine whether a president-elect is qualified, I concede that it is not clearly and explicitly stated. If it was crystal clear, then then we would not be debating it.
But in many places the Constitution does not completely expand on its meaning. If the Constitution laid out explicitly and clearly the meaning of just the First Amendment, it would have to be 1000 pages longer.
That the Constitution intended the Congress to be determiner of the qualification of a president-elect is evident from the scheme of powers granted to the branches and the explicit contemplation of a failure to qualify process.
Consider the case of a defect raised as to eligibility AFTER a president has been sworn and taken office. In my view, a claim that a president has falsely assumed his office would be necessarily a "high crime or misdemeanor" and therefore it would be the exclusive role of Congress to decide whether to remove the president.
If the Constitution grants this power exclusively to the Congress after the president takes office, then it is consistent with this scheme of separation of powers for Congress to have this power also during the period between the time the president-elect is determined and when he takes office.
As to the rest of your post, it appears we are agreed.