"There is always a philosophy for lack of courage."—Albert Camus

Tuesday, September 13, 2016

Law of the Clinton Candidacy



#1. If Hillary Clinton resigns as the Democratic Party’s candidate prior to the general popular election, what process does the Democratic National Committee (“DNC”) use to select a new candidate?

#2. As a practical matter, how does the answer to question #1 depend (if at all) on each state’s election and ballot law?

#3. If Hillary Clinton chooses not to resign, but a majority of the DNC believes she is incapacitated, can the DNC select a new candidate prior to the general popular election? What process does the DNC use to select a new candidate?

#4. As a practical matter, how does the answer to question #3 depend (if at all) on each state’s election and ballot law?

#5. If Hillary Clinton carries the electoral college in the general popular election, but before the electors formally meet and vote, she resigns, or becomes incapacitated, or otherwise becomes unable to serve, are her electors bound to vote for her as pledged? In such circumstances, who decides if the candidate is incapacitated?

#6. How does the answer to question #5 depend (if at all) on each state’s election law?

#7. If Hillary Clinton is elected by the electoral college, but before the start of her constitutional term, she resigns, or becomes incapacitated, or otherwise becomes unable to serve, who becomes president at the start of the new term? In such circumstances, who decides if the president-elect is incapacitated?

#8. If President-elect Clinton were sworn in, but subsequently became incapacitated prior to her appointing any cabinet members, can the Vice President succeed her, even temporarily? See Twenty-Fifth Amendment, Section 4 (“Whenever the Vice President and a majority of either the principal officers of the executive departments ... transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.” (emphasis added)). Do acting heads of executive departments (i.e., senior high level civil servants not subject to presidential nomination and Senate confirmation) count for this purpose? Isn’t this a good reason for the members of President Obama’s cabinet to remain in office until their successors are actually nominated, confirmed, appointed, and sworn in? 

Don’t you think the Democratic National Committee, Vice President Biden, and Senator Tim Kaine (the Democratic Party’s candidate for VP), each already have on file a full-length memorandum on these questions? Maybe the mainstream media could “obtain” copies for the rest of us?

Would not this make a suitable—if not outstanding—law journal mini-symposium issue: “The Hillary Clinton Candidacy: The Legal Issues”? Any takers? An impromptu mini-symposium could be organized, held, and published on line prior to the November election, particularly where all articles are kept to a maximum of 7 pages (footnotes included).

The “natural born citizen” issue generated several timely full-length articles. Surely there is time and means to do this too. The on line supplements to the primary student-edited print journals are particularly well-suited for this task. Any takers? 


Seth 

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

2 comments:

submandave said...

Thank you for clearly asking these questions. In all the talk of a "replacement" these sorts of questions have been bouncing around my head but no one seems to address the practicality of actually implementing such a seemingly simple idea.

As best I can figure it out, it is far too late to actually (legally) get any replacement candidate on the ballot in any State. The only feasible option seems to be something like the Democrats did in Missouri with Carnahan: "vote for Clinton and we'll actually elect XXXX." I do not know the legalities of fulfilling this promise at any individual State level, but it certainly seems there is no federal law prohibiting it.

Another set of questions to ask, outside the technical legalities, is the downstream effects, both legal and societal, of using intentionally "faithless" electors to seat a President.

Jeremy Abrams said...

I think Hillary would have to pledge that if elected (including by the EC), she would abdicate (I know that's the wrong word, but it's right for her), in favor of Kaine. All the public would need to do is trust her to keep her word. HAHAHAHA.