The Volokh Conspiracy
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No, 18 U.S.C. § 2071 Cannot Disqualify Trump From The Presidency
That statute disqualifies a person from "holding any office under the United States."
According to reports, the FBI searched Mar-A-Lago as part of an investigation about the handling of classified documents. Will this be the action that finally stops Trump? Several progressive commentators gleefully pointed to 18 U.S.C. § 2071. It provides:
Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term "office" does not include the office held by any person as a retired officer of the Armed Forces of the United States.
If Trump is convicted of violating this statute, can he be disqualified from the presidency? No. And my colleague Seth Barrett Tillman wrote about this precise issue in 2015. At the time, conservative commentators, including former Attorney General Michael Mukasey, argued that Hillary Clinton could be disqualified from the presidency due to the storage of classified materials on her private email server. Seth explained that Mukasey's argument does not work.
Under Powell v. McCormack and U.S. Term Limits v. Thornton, Congress and the states cannot "add to the express textual qualifications for House and Senate seats in Article I." And that reasoning, Seth concluded, would seem to apply to the qualifications for the presidency in Article II. Several courts in the Seventh Circuit, and elsewhere, reached that same conclusion.
On this blog, Mukasey later admitted that Tillman was correct, and he was wrong:
[O]n reflection . . . Professor Tillman's [analysis] is spot on, and mine was mistaken. . . . The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that's all it is.
Tonight, Charlie Savage of the New York Times recounted this history in an article on the Trump search.
Some Republicans were briefly entranced with whether the law could keep Mrs. Clinton out of the White House, including Michael Mukasey, a former attorney general in the administration of George W. Bush. So was at least one conservative think tank.
But in considering that situation, several legal scholars — including Seth B. Tillman of Maynouth University in Ireland and Eugene Volokh of the University of California, Los Angeles — noted that the Constitution sets eligibility criteria for who can be president, and argued that Supreme Court rulings suggest Congress cannot alter it. The Constitution allows Congress to disqualify people from holding office in impeachment proceedings, but grants no such power for ordinary criminal law.
Mr. Volokh later reported on his blog that Mr. Mukasey — who is also a former federal judge — wrote that "upon reflection," Mr. Mukasey had been mistaken and Mr. Tillman's analysis was "spot on." (Mrs. Clinton was never charged with any crime related to her use of the server.)
Once again, Tillman rebuts an argument that conservatives favored as a way to get Clinton, that liberals now favor as a way to get Trump. There is nothing new under the sun.
Back in 2015, Seth did not have to make the argument that the Presidency is not an "office under the United States" for purposes of Section 2071. But Seth and I did consider another statute, 18 U.S.C. § 2383, which also disqualifies a person from "holding any office under the United States." In an article published shortly after the inauguration, we addressed what happens if the Biden administration prosecutes and convicts Trump of insurrection. That article is suddenly relevant to our present moment.
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At this point, public self help has full justification against the Dem attack ruuning dogs.
What is the name of the federal judge who signed that search warrant in Swamp lawfare. Is it a diverse? It will be impeached soon.
They all but admit it’s all about keeping Trump out of the White House (and an object lesson for any other future would-be challengers of the permanent Washington Establishment).
I am certain Trump will be indicted. (Any chance a Washington D.C. grand jury wouldn’t jump at the chance?) Whatever bogus charges the Justice Department concocts ultimately won’t stick, but conviction won’t be the point. But I think it will wait until Trump has secured the GOP nomination, for maximum political effect.
Honestly, I was a bit uneasy about the Senate Republicans’ holding up the Merrick Garland nomination, but as everyday he continues to reveal himself as a slimy political hack, I thank God he is not on the Supreme Court, and also out of the judiciary altogether. Perhaps he is partially motivated by revenge against the Republican party.
Notice how its never really the same thing. If they actually had something they would be able to stick with it and grow a case. But its running series of throwing everything against the wall Trump could have made a booboo on or at best they’ll revisit something once from a different angle.
Think about what you just said. Trump committed so many felonies that prosecutors can’t make up their minds about which ones to charge him with in which jurisdictions.
Would you be kind enough to give us some of the “felonies” you believe he committed?
Everyone who works commits 3 felonies a day. Lend me your phone for an hour, i can get you 20 years in federal prison.
https://bfy.tw/TPfe
“(sharing this link would be useless)”
Broken link? Above is the message at the top of the page. There was nothing else and no list of alleged crimes.
Odd, it works for me. Anyway, try this.
I don’t suppose you care to share anything showing them “all but admitting” that? Shouldn’t be hard. During I think by the second (of three, collect them all!) year of Benghazi! we saw one or more republicans state outright that the whole thing was intended to derail her campaign. So there must something out there approximating that you can provide to support your claim.
Grand juries everywhere jump at the chance to indict.
According to Wikipedia, Sol Wachtler is still alive. https://en.wikipedia.org/wiki/Sol_Wachtler
Your paranoia seems the only author of ‘They all but admit it’s all about keeping Trump out of the White House.’
Pretty sick how they are at the point of brazenly using the FBI as political attack dogs and nobody bats an eye due to the complicity of the Pravda I mean media.
Like Sarah Huckabee Sanders said: https://twitter.com/SarahHuckabee/status/794255968448020480
The things you know that everyone else would know but for the media being complicit…
It must be a burden being so uniquely insightful.
Apparently this is about some documents the National Archive believes Trump possesses that belong to them. I am curious what attempts to recover the documents were made before an early morning armed raid was authorized. In 2016 The FBI had probable cause to believe Hilary had classified documents on her private email server. I don’t believe they executed any early morning raids to recover those documents.
They couldn’t even get him to stop flushing papers down the White House toilets, I don’t know what sort of co-operation you think they could expect from the guy.
Those low flow toilets really suck.
No, the entire problem with them is that they don’t.
Your post admits it’s a different issue, and that the facts are pretty spotty as of yet.
But you’re still certain there’s a double standard!
It will be interesting to watch this play out. Despite what F.D. Wolf states, there is no evidence that Garland is “a slimy political hack.” There is, however, abundant evidence that he is a smart, cautious, methodical prosecutor. It will be a while before anyone knows what led to the approval of the search warrant, but I’m willing to bet that the supporting affidavit shows ample, clear cut, powerful evidence of the commission of a crime by the former president.
Garland is a huge turd who claimed parents who attended school board meetings to voice their opinions about what their kids were being taught about sensitive subjects (CRT and LGB for starters) should be investigated while he ignored BLM riots that killed peeps and did hundreds of millions of dollars in damage.
No question Hillary played fast and loose with classified material and deleted thousands of files and then lied about it but no raid on her place.
It is an impossible job to try and defend Garland.
David, of course, is gaslightin’ for the Sawmp. Garland is a Dem douche attack running dog pretending to be serious. He is a political hack, nitpicking. We are all committing multiple federal felonies a day, only our political irrelevance keeps us from being investigated by the FBI, a Democrat attack group protecting the Swamp. Payback is coming. Impeachment is the least of the worries of the servants of Soros and of the Chinese Commie Party. David needs to stop his lawyer gaslightin’.
Shorter David Nieporent: NUH UNH!
Riveting stuff.
‘evidence’: he’s on my side of the political aisle.
Garland is an Ivy indoctrinated, Dem attack running dog, a lawyer scumbag on the arrest list. He will be impeached in 2023.
I see a good chance that the target of the investigation is somebody other than Trump.
Who?
I can think of three options:
1. The target is somebody with greater responsibility for handling the materials and moving the boxes, not the guy whose house they were found in.
2. The target is somebody whose case will not be complicated by the special status of a president, especially under laws governing classified material.
3. The target is somebody who can be prosecuted without appearing to take petty revenge on a politicial opponent for a minor offense.
That’s on top of
4. They don’t trust Trump’s people and want to see for themselves that all misappropriated material has been returned. In this case they aren’t after anybody in particular yet.
This is also the funniest option, IMO.
Washington Post says it’s 4.
Just my two cents but the sad thing about this is everything I have seen Trump accused of seems to be something of a stretch while no one disputes Hunter Biden has violated black letter law (lied on application to buy a weapon about drug use and the SS went and got the weapon out of a trash can after he discarded it).
What is sad about this is once the elections in 2022 and 2024 are over the shoe may be on the other foot.
The Republican base will want investigations into Hunter and father, and if they get bold, may want a Hillary investigation too. While both would be politically motivated payback for two feeble impeachments, the Russian lies, and this FBI raid, at least it would make a bunch of corrupt politicians squirm and keep Congress from doing any more harm.
Republicans? Do politically motivated investigations? Good heavens, how novel.
They can investigate all they like if they get at least one chamber of Congress, but without the DOJ on their side, it goes nowhere. Because, short of using their power of ‘inherent contempt’, not used since the Teapot Dome scandal, they depend on the DOJ enforcing their subpoenas and prosecuting their contempt referrals.
It will be the usual show of doing something when they have no power to execute their will, to be swiftly replaced with inaction if they do get their hands on the levers of power again. Remember, for all the theatrics, the GOP establishment hates Trump, perhaps more than the Democrats do.
Personally I’m good with going after the DNC crime family. You’ve already got the rampant corruption, the abuses of power and could probably make at least a Trump impeachment level case that their BLM ACTBLUE protection racket was explicitly about ratcheting up violence to turn the election ( that quid pro quo thing Democrats have all but forgotten about).
Love this attitude.
“The GOP will be fully mask-off authoritarian, and it’ll be the Dems fault for doing this thing I can speculate into being bad.’
No, dude, it’ll be the GOP’s fault if they decide to be awful.
Nah. Time to raid Biden’s Delaware home for evidence of his criminal influence peddling with his son. And let NewsMax and OANN know about it so they can televise it for the world to see.
You will not like the rules being set here, but c’est la vie.
We will also miss HAVING documents from Presidents after their terms in office but that will ALSO cease to happen now.
Well, we know you plan to dispense with things like ‘probable cause’ and ‘evidence.’
What you just advocated for is a huge escalation compared to what happened here.
Which shows that this isn’t about rule setting, it’s about spite and revenge. Emotional reactions.
Jesus Christ, Hunter Biden.
The two situations are quite different in both kind and magnitude. Do you want a no-knock warrant on Hunter Biden as recompense or something?
The fact that the demonization has turned on Hunter Biden shows how little the right really has on the President and Administration.
Yes, President who, while VP, engaged in a blatantly illegal quid pro quo to get a prosecutor investigating his son’s company is nothing. Nor are the backroom deals that he STILL benefits from to this day with the intermingling of his finances with Hunter.
Yup, nothing there at all.
Which didn’t happen.
Fascinating! Can’t wait to see the proof that you’re going to share with us very soon.
https://thehill.com/opinion/white-house/436816-joe-bidens-2020-ukrainian-nightmare-a-closed-probe-is-revived/
But Trump doesn’t have the magic(D), so he’s vulnerable.
He’s the most unapologetically corrupt and criminal politician I have ever seen in any country. Other corrupt and criminal politicians tend to at least deny that they are taking bribes, stealing money, etc, not brag about it. I would argue that Trump is most definitely magic, because how else can you explain that he’s not in jail?
“ever seen in any country” can only mean you don’t know any other countries, period, and don’t go back in history much at all.
Hyperbole like that is not how you convince readers that you have anything worthwhile following.
Not sure ‘there are some truly awful countries out there so Trump isn’t the absolute worst, really’ is the defense you think it is.
I took it more along the lines of “your statement is so over-the-top outrageous that there’s no particular reason to think it’s true at all.” But you do you.
Oh, Martinned is probably wrong on the facts if you compare to some of the villains who have lead and looted countries throughout history.
But if your defense is not to say Trump isn’t corrupt, or even that he’s like normally corrupt, but rather to just say Trump clears that super low bar, that’s amusing and telling.
Who else do you know who is (more or less) democratically elected and who brags about his corruption and criminality? I’ll take a past example. Because all I can think of are tinpot dictators and I wouldn’t describe them as “politicians”. Even Victor Orban denies putting all that money in his own pockets while he’s doing it.
I’m sure the GOP justices on the Supreme Court will agree with you, so there’s nothing to worry about. (Also because the odds are slim that anyone will even try to prosecute Trump.)
I would have thought the opposite on Trump’s prospects for prosecution. Absent mis-carriage of yesterday’s search, which I think extremely unlikely, I would have thought Trump’s prosecution is now certain. Could Garland okay that search without certainty that if it turned up the evidence sought it would result in prosecution? That seems inconceivable to me.
Yeah, I thought there was less than zero chance of any sort of indictment, but it’d be weirder to execute something like this and not be prepared to follow through. Yuge, as they say, if true.
I can’t personally see them taking this action, and not following up with an indictment. Whether they can convict is another matter.
Here’s my prediction: If indicted, he’ll chose a bench trial, and the prosecutor will insist on a jury.
There’s zero chance that Trump would ever ask for a bench trial, because – like Alex Jones – he does circus for a living, and relishes in it. Even if he had a hundred lawyers recommending that he ask for a bench trial, he would still insist on a jury.
Possibly, but with his freedom on the line, he might well listen to a lawyer for once.
Jones could reason that even if he lost, he’d make up the likely penalty in publicity. Trump… Well, I suppose he might reason similarly. I suppose you’ve got me there.
True. Also, I’m not sure “reason” is really the best approach to take when predicting what Trump will do in any given situation.
I think there’s a large emotional content to Trump’s decision making process, but that’s true of anybody; Absent emotion, we’d just sit there like inert calculating machines, we’d have no motive to act on any reasoning.
Trump has been too successful in his life to plausibly maintain that he doesn’t reason, and deeply. You don’t have to like him to accept that; Totally irrational people don’t succeed in life. He does a lot of random, stupid stuff, because it keeps his opponents off balance, but there’s calculation behind most of it.
You mean the guy who inherited billions from his dad and then went from one failed business to the next? That successful guy?
Yes, I mean the guy who inherited the millions his dad had because he’d been managing his dad’s businesses for him for years. Who had a fraction of his businesses go under because he wasn’t stupidly cautious. The guy who has been living a billionaire’s lifestyle for decades, who succeeded in being elected President.
I really do not understand why anybody would be stupid enough to actually believe the trash talk about Trump. There’s something pathological about it. By any sane measure Trump has been wildly successful. I guess that’s it: By any sane measure…
You’re seem to be a smart guy, so how could you make such a stupid claim as to the amount Trump inherited?
You mean why don’t I take Trump’s word for it when he explains how much of a successful business man he is? Because he exaggerates anytime he speaks about himself.
Why would you have to take Trump’s word for it? Is he some nobody who just showed up and claimed to be wealthy, and no reason to suppose he isn’t lying?
No, he’s somebody who Forbes magazine says is a billionaire. Strangely, for somebody who’s incompetent at managing money, his net worth only dropped while he took time off to be President, and resumed rising again after he left office.
No question in my mind Trump is a very smart guy who has lived a life many peeps dream of, even if some parts of it seem over done. While his lifestyle is definitely excessive in my mind (not saying I am a one woman guy but at some point you can go overboard with the number of partners) the amount of money he has made and more to the point spent was not achieved by random chance or crazy decision making. The saying ‘crazy like a fox’ comes to mind.
But I do think he has some mental issues. I remember talking to a very capable mental health professional who said one of her patients ‘did not fit into any mental health box’. Maybe some form of OCD where he can not let certain things go and move on; sorta reverse TDS.
On the other hand Trump’s super power is his ability to poke a sharp stick in the eye of lib powers that be. Truth be told a lot folks, including some dems, are happy to see obviously fake pols get embarrassed in public and no one does it as well as Trump.
Amazing how few ham sandwiches actually get convicted in the ham-sandwich-to-prison pipeline.
“Amazing how few ham sandwiches actually get convicted in the ham-sandwich-to-prison pipeline.”
Right. The overwhelming majority of ham sandwiches, something like 95%, cop a plea rather than being convicted.
But I don’t see this particular ham sandwich doing that.
Staging a huge public relations raid and hauling off boxes of “suspected evidence” will lead to an indictment and trial. No doubt about it.
Just ask Richard Jewell.
An indictment and trial of whom? Based on what statute(s)?
This might be true for Comgress. But for the states, it’s nonsense. State legislatures have sole power to determine how presidential electors shall be selected. They can pick them themselves. They can have a popular election that’s purely advisory. They can nominate specofoc individuals and ask the voters fo pick among them.
Of course they can use a popular election, but only for electors pledged to candidates that meet certain qualifications. Any qualifications they want.
Must be great living in a democracy. (Where I live Boris Johnson won the last election with 44% of the vote, and as a result got to do whatever his own party would let him do.)
Since we’re on the topic: May state legislatures also change the rules between the election and the vote of the electors?
Nope. Congress, constitutionally, gets to set the day the electors are chosen, the states set the WAY they are chosen. But election day IS the day they’re chosen, and there are no backsies, once they’ve been chosen, that’s it, the states’ role in the process is done.
There can be a little wiggle room for disputing which electors actually DID get chosen on election day, prior to their voting, but nothing involving any changes of rules.
Let’s get a screenshot of that, because I anticipate the possibility of you (and definitely others on this blog) arguing differently in 2024 or 2028.
No, I don’t see any reason to suppose I’ll change my mind about that, barring a constitutional amendment. The Constitutional text is pretty darned clear about that: State legislatures have near plenary power to declare the means by which electors are chosen, but Congress decides they DAY that choice takes place. After that day, any legislative changes can only affect the selection of the NEXT slate of electors.
State legislatures can insert themselves into the process of resolving election challenges that take place after election day, but they’d have to do the insertion by enacting something prior to that day. And it would still be a process of determining which electors HAD been chosen on election day, not which electors TO chose instead of them.
And while it’s arguable that state courts can’t override the state legislature on these decisions, the federal courts certainly could.
Let’s see what you think after Moore v. Harper.
(Because of course forbidding any litigation about the decisions of state legislatures means that any limits that might exist for their powers become dead letter.)
I think it could at least potentially survive this case. The case’s question is basically whether federal courts are bound by the decisions of state courts, election commissions, etc., or whether they interpret state statutory law on presidential elections directly, ignoring what these other state bodies say.
But even if federal courts interpret the will of state legislatures directly, without regard to what state courts and agencies think, when that will can be or has been expressed is still a separate question. Federal courts would still they would still have the power to say that what the state legislature says now is different from what it said before the appointment date, and only what it said before the appointment date counts.
I understand that the path between only what the legislature itself says matters, and the legislature can interpret itself post-hoc including making an interpretation that outsiders would classify as a change, is not such a long path. But there’s still some visible distance between the two positions.
Yes, that’s the argument: That when legislating on presidential elections, the state legislature is fulfilling a federal function, where the federal, not state, judiciary have the last say. So it’s a federal law, not state law, question, whether the state judiciary and executive got it right.
The reason I said “near” plenary is that, while the state legislature arguably isn’t bound by the state constitution in this area, it certainly is by the federal Constitution.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations
“Manner” means “manner”, no? So Congress can change not only time and place but the manner too.
Yes, for elections for Senators and Representatives, but not for Presidents.
Yup. I’m wrong.
I suspect, however, that if a legislature passed a law that the state chairman of Party X appointed the state’s electors – which the text permits – such a law would be deemed unconstitutional.
https://constitution.congress.gov/browse/essay/artII-S1-C2-2/ALDE_00001121/
I see no constitutional basis for deeming it such, though that’s of course no guarantee as to what the Court would rule.
Now, if they tried holding any sort of vote, a lot of restrictions kick in.
Just revive this:
The United States shall guarantee to every State in this Union a Republican Form of Government
It would be an infringement on the partially unenumerated right to vote, the BoR and subsequent amendments having the effect of modifying the original text.
Even Alito and Thomas would concede that the right to vote for the president has been hallowed by historical usage…probably.
Legislatures retain control over how electors get selected, including the right to pick them themselves. Their is no constitutional right for individual citizens to have any say at all in the selection of the presidentt. States have simply chosen to use popular vote as their manner of appointing the Presidential electors.
So they could make the popular vote purely advisory, or not have one at all, or have a vote but pick the candidates, or use qualification rules to limit the set of possible candidates.
I would previously have said that it’s pretty clear that one thing they can’t do is, having determined that appointment will be made by popular vote, then take it back after the fact. The Constitution gives sstate legislatures power to determine the manner of appointment, but it gives Congress the right to determine the day the electors are appointed. That combination means that once that day arrives, legislatures no longer have any say in the matter (except for the day they set for themselves).
But the recent Hamilton Electors cases cast doubt on that. The Supreme Court held that duly appointed electors could be disqualified post-hoc based on their post-appointment conduct. I think this would only apply to qualifications determined prior to the appointment day. But I’m not certain. It remains a more open question than I thought it was prior to the Hamilton Electors case.
Their is no constitutional right for individual citizens to have any say at all in the selection of the presidentt.
Changing that feels like it should rise to the level of “it should be harder for politicians to get pay rises”-level of bipartisan support. And yet somehow I doubt that anyone could get a constitutional amendment passed that says that presidential electors need to be elected by voters.
The problem is that nobody really JUST wants to take the present system and lock it down. They generally want to make some changes and lock it down. And there’s no consensus on those changes.
“Their is no constitutional right for individual citizens to have any say at all in the selection of the presidentt (sic)”
….and what is the right of individuals in Great Britain to select their Prime Minister?
There isn’t one, there’s never been one. The whole concept of a Prime Minister barely exists, legally. That’s why it says First Lord of the Treasury on the door at 10 Downing Street, because that’s the man’s job title.
I’m not sure why you asked, but always happy to educate the less fortunate.
Yes, I’d say there are only two potential constitutional issues with that compact.
1) It IS an inter-state compact. Article 1, Section 10, Clause 3:
““No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power.”
It probably violates the inter-state compact clause unless Congress gives its consent.
2) Since the compact conditions the selection of a states’ electors on the result of elections in OTHER states, which may not be final until substantially after election day, it could be argued to violate the requirement that electors be chosen ON election day. But I’d rate this argument a bit of a stretch.
I think the popular vote compact is a bad idea, but probably constitutional.
The actual plan, I believe, is to claim he’s guilty of ‘insurrection’, and purport to disqualify him under Section 3 of the 14th amendment. That’s why they’re so adamant that January 6th was an ‘insurrection’, it gives them an excuse to invoke that clause.
They can’t disqualify him on the basis of lesser charges for constitutional reasons.
Not just my imagination, either. That’s the conclusion of people who hate him with an abiding passion.
It’s the conclusion of lots of other people too. Isn’t it great having the best constitution in the world?
The opinion of someone who lives in a country without a written constitution?
The British constitution is absolutely written (or at least as written as the US one). It’s even written in a single place, eg. see the references here: https://davidallengreen.com/2021/03/you-say-you-want-a-written-constitution-here-are-four-online-places-where-it-is-already-written-down/
Really? On the internet? Why didn’t the US think of that?
No, he’s right, they do in at least some sense have a “written constitution”, it’s just that it’s legislation, not, like the US Constitution, legally superior to any legislation.
Which is why we tend to deny that they really have a written constitution, because it doesn’t have the same “supreme law of the land” status ours has; They can steam roller it any time they really want to.
Exactly. And that distinction often gets overlooked in UK discussions as well, where people end up talking past each other because they’re simultaneously arguing about whether the constitution should be written down in a single document (meaning something other than the Cabinet Manual), and whether there should be some law that is superior to normal Acts of Parliament. Not getting this distinction straight is not a great way to start a discussion…
The British constitutional system is hard to explain to people unused to the peculiar combination of written laws, general principles and customs, and “understandings”. In my youth I tended to argue in favour of a “proper” written constitution, but having been persuaded by a now-ennobled Thatcherite colleague towards a more pragmatic and less idealised perspective (thank you Bagehot and Oakeshott) I changed my mind. I still retained my membership of the Lib Dems until I moved here…
In the US (and in the Netherlands, which has a constitution that is about as long as the US one), the vast majority of constitutional law also consists of customs and understandings, or otherwise of things that politicians don’t do even though they could get away with it. The “good chaps” theory of government, as they call it here, works until it doesn’t. And when it doesn’t it’s too late to write a “proper” constitution, because by then there is no one you can trust to write it.
My favourite instance of the British Constitution in action occurred shortly after the Falklands War. Thatcher, flush with victory and high approval ratings, decided she wanted a very early election – 2 1/2 years or so. The queen was asked through the usual channels about how she would react to Thatcher’s request to dissolve parliament and call an election, and her response was that while she would be compelled to accede to the request, she did not like the idea of Thatcher calling an election so soon just because she’d won a war, and that if Thatcher did go ahead and call for an early election, the queen’s displeasure would be made known – though of course, unofficially. That was enough to put the kibosh on the plan.
This makes perfect sense in a UK context, of course.
I feel inadequate to engage in an argument with two who are more learned on the law, but it seems to me that this boils down to what you accept as the definition of what a constitution is and isn’t.
A constitution is a law that says how laws are made. (And therefore also which laws aren’t allowed to be made.)
That’s part of a constitution, but what a “constitution” does is “constitute” the government, that is to say, it’s the law that sets up the form and function of the government.
I think a key difference is that in England, a long disused royal power can be assumed to have dissappeared and the constitution to have been effectively changed through custom and use. But in the US, with an explicit written constitution that supercedes mere legislation, explicit written constitutional powers don’t simply go away just because they’ve been dormant for centuries. They can be revived. State legislatures’ power over the appointment of Presidential electors is probably as good an example of the difference as any. No state legislature has appointed electors directly since the 19th century. But they absolutely could if they wanted to.
They could do lots of things thst present an intermediate position between direct appointment and a popular vote. They could have an advisory popular election. They could have a popular election but control who is allowed to run.
What they can’t do is a sham popular election, in which they provide for a popular election but then disqualify it on bogus grounds. They also can’t alter the outcome by changing the rules after the fact. They have to be honest and up front about what the method they pick is and make it clear to everyone beforehand. The rules have to be laid out in advance, and then followed.
There are some other important limitations. Later constitutional amendments regarding elections apply. So if they have a popular election, they can’t limit it to whites only, men only, etc.
These distinctions may be subtle. But they are important.
Brett, this blog post from yesterday does not give you special insight into the ‘actual plan.’
I know you live in a world full of well coordinated hidden liberal plans and agendas, but in reality the Dems are as sclerotic as they appear.
I agree that the disqualification from office provision of 18 U.S.C. § 2071(b) cannot be applied constitutionally to the office of president under U. S. Term Limits v. Thornton. I also believe that the Department of Justice has bigger fish to fry vis-a-vis Trump than his mishandling of public documents.