//  3/27/17  //  Quick Reactions

On February 14, 2017, the New York Times reported that members of President Trump's campaign "had repeated contacts with senior Russian intelligence officials in the year before the election," including Paul Manafort, the former chairman of the campaign. In response, CNN political commentator Sally Kohn argued that the road ahead was a clear one:

Straightforward from here:
1. Impeach Trump & Pence
2. Constitutional crisis
3. Call special election
4. Ryan v Clinton
5. President Clinton

— Sally Kohn (@sallykohn) February 15, 2017

Kohn's tweet earned a lot of well-deserved mockery (including from me), in large part because the Constitution doesn't provide for presidential "special elections." (Kohn later claimed she was joking.) But today in the Atlantic, Norm Ornstein argues that the rules of Presidential succession should be revised to provide for just that.

Americans now have to face at least the possibility, a tangible one, that the election itself was subverted by a hostile foreign power in league with the winning presidential campaign, with implications all the way down the ballot.

What to do if that proves to be the case? It is a question I have been asked a lot; my stock answer begins with, “The Constitution does not have a do-over clause.” But I am now rethinking the response: Maybe it needs a do-over clause. And it does not have to require a constitutional amendment.

Ornstein goes on to argue that Congress should write a law authorizing "a special election for president and vice president under extraordinary circumstances," such as "foreign interference in the election." As Howard Wasserman explains at PrawfsBlawg, this is designed to cure the problem that "if a cloud if illegitimacy hangs over the President and Vice President, everyone who might replace him within the line of succession sits under that same cloud."

A few quick thoughts in response. Congress is authorized (in Article II, Section 1) to provide for "the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected." Under the scenario Ornstein lays out, the President and Vice President are not dead and have not resigned, nor does he contemplate their "removal" by impeachment. I suppose the textual hook is therefore "inability," which seems like a stretch.

The bigger problem is that Article II contemplates a fixed presidential term: the president "shall hold his office during the term of four years." It then lays out a detailed scheme for that election, as modified by the Twelfth Amendment. This seems facially inconsistent with a Congressionally-authorized "special election."

But set that aside: would such a proposal be wise? How would it function in practice? In particular, the United States has unusually long election seasons. As Stephen Walt has argued, those long election seasons, in combination with our relatively short presidential term, have serious foreign policy consequences: "a long electoral cycle also lengthens the period in which foreign actors can try to use our internal preoccupations to advance their own ends." (We had some experience with that in 2016.)

Moreover, it seems clear that no special election could be conducted with a normal year-long presidential primary. The nominations for the parties would almost certainly have to be done in an expedited way that would favor the party's insiders. Given that our last two Presidents have been (to differing degrees) party outsiders, that is an effect worth taking seriously. (Note that Kohn's tweet contemplated a Ryan v. Clinton matchup.) The need to raise the enormous sums of money required would also favor the party's establishment (or people who were wealthy enough to self-finance), as there would be no time for an insurgent campaign to get off the ground.

Finally, a question: I wonder if Ornstein is contemplating a special election only for the presidency, or if the Congress would also stand for election? The former proposal would be strange, given the substantial coattail effect in presidential election years; any president who was elected illegitimately would also probably have brought in some members of the legislature along with him. But the latter proposal would only deepen the Constitutional questions, as well as magnifying the expense and difficulty of the exercise.

The DACA Decision is Trouble for Discrimination Law

6/24/20  //  Commentary

The Dreamers’ victory has been celebrated as a sign that the Court is above partisanship and willing to serve as a check on executive branch abuses. But the price of that victory was a defeat for the Constitution’s guarantee of equal protection.

Jessica Clarke

Vanderbilt Law School

Versus Trump: The Military in the U.S. and Proxy Voting in the House

6/7/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie take on two topics. First, what can the president legally do to use the military on American soil? Second, is it legal for the House of Representatives to vote by proxy, without being physically present in D.C., as alleged in a new lawsuit by House Republicans? Listen now!

Charlie Gerstein

Civil Rights Corps

Executive Branch Inconsistency on Congressional Standing

4/27/20  //  Commentary

By Ashwin Phatak: Although DOJ has recently taken the position in litigation that the House of Representatives lacks standing to bring a civil action to enforce a subpoena against an Executive Branch official, that position conflicts with prior DOJ precedents

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