Constitutional Quandaries and Conundrums

This page is, as they say, for entertainment purposes only.  The following scenarios are not intended to imply support or opposition to anything that might or might not actually happen, but rather are offered for the sole purpose of starting a discussion on the relevant Constitutional question.

Enjoy!

 

The Constitution is the guide which I will never abandon.

– George Washington

 

My faith in the Constitution is whole, it is complete, it is total.  I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.

 

– Rep. Barbara Jordan

Member, House Judiciary Committee
Nixon Impeachment Hearings, 1974   

 

Let us leave the Constitution as unimpaired for our children as our predecessors left it to us.

 

– Rep. Peter Rodino

Chairman, House Judiciary Committee

Nixon Impeachment Hearings, 1974

 

 _________________________________________________________

CONSTITUTIONAL QUANDARY AND CONUNDRUM #1:  Under the Constitution of the United States of America, could the 2016 Republican nominee select former President George W. Bush as his running mate?
[NOTE: This is NOT a discussion on whether the Republican nominee selecting President Bush would be likely to happen or would be a good idea politically – rather it is an examination of the question of whether a former two-term President can run for Vice President.  President Bush is only an example; I could just have easily asked if the Democratic nominee could select President Barack Obama. Other than the names, the discussion would not change]
To answer this, we need to examine three parts of the Constitution that are relevant here:

  • The only reference in the Constitution to qualifications for the Vice President is found in the 12th Amendment:  “…no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
  • The Constitutional definition of who is eligible to the office of President is found in Article II, Section 1:  “No person except a natural born citizen…shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
  • The 22nd Amendment places a limit on how long any person can serve as President:  “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once…

 

Clearly, under the 12th Amendment, the Vice President has to meet the same basic eligibility requirements as the President.  In other words, he or she must, at the very least, meet the qualifications found in Article II, Section 1 – that is, he or she must be a natural-born citizen, at least 35 years of age, and at least 14 years a resident of the United States.  George W. Bush obviously meets all of these requirements.
But what of Bush’s past service as President?  This is where the 22nd Amendment comes in.  That Amendment limits how many times any person can be elected to the Presidency, and places a 10-year limit on any person’s total time in that office – meaning two full terms of their own and up to half (two years or less) of a term to which someone else was elected.  A more careful reading of the 12th and 22ndAmendments, however, reveals why this issue belongs among the most challenging Constitutional Quandaries and Conundrums.

The 22nd Amendment

The 22nd Amendment is very specific in limiting the number of times a person can be elected President.  If George W. Bush were to be the Republican nominee’s running mate in 2016, he would not be trying to get elected President, he would be trying to get elected Vice President – considered a completely separate office under the Constitution – and the 22nd Amendment is silent on that issue.  If he were elected Vice President and then rose to the Presidency through succession upon the death, resignation, or incapacity of the President, this would not constitute being  “elected to the Presidency” a third time, and therefore would not violate the 22nd Amendment’s limit on the number of times a person can be  elected President.
But what of the 10-year limitation on total time served as President?  This provision has applied on two occasions since being enacted in 1951: when President John F. Kennedy was assassinated in November of 1963, Vice President Lyndon Johnson became President and served the remaining 14 months of the term, then was elected to a full term in 1964.  Since he had served less than two years of President Kennedy’s term, he was eligible to run again in 1968 (he chose not to run, and died in 1971 – before that term would have run out).  On the other hand, when President Richard Nixon resigned in 1974, Vice President Gerald Ford became President with more than two years – actually about 29 months – remaining in the term.  He was therefore only eligible to be elected to his own term once (he ran in 1976 and lost, and was briefly considered for selection as Ronald Reagan’s running mate in 1980).  The 22nd Amendment was clearly written based on the assumption that the time spent as President that was part of “a term to which some other person was elected President” would take place before  a person was elected to the Presidency in their own right, as it did with both Johnson and Ford’s re-election attempts.  What is applicable to our discussion here, however, is that the 22nd Amendment does not preclude or prohibit the possibility that the time spent as President that was part of “a term to which some other person was elected President” might take place after that person had already been elected to the Presidency twice.
This would, of course, require an inverse reading of the 22nd Amendment, and after doing so it seems reasonable to conclude that someone who has already been elected President twice – like former President Bush – could later serve as President for part of “a term to which some other person was elected President”, as long as any such period he served as President did not exceed two years. There seems little doubt, then, that if a vacancy in the Vice Presidency were to occur with two years or less remaining in a Presidential term, Bush could be selected as the new Vice President with no Constitutional issues arising, since he could succeed to the Presidency if necessary and serve out the remainder of the term without exceeding the 10-year-limit.
What if Bush was elected Vice President and then rose to the Presidency with more than two years remaining in the term?  The 22nd Amendment would seem to require Bush to resign the Presidency at the end of two years, so as not to violate the 10-year limitation.  Assuming Bush had nominated a new Vice President after he rose to the Presidency (and that Congress had confirmed the nominee), the new Vice President would be guaranteed to become President of the United States when Bush reached the two-year mark and had to resign.  The idea that George W. Bush could hand-pick the next President would, of course, meet with political resistance, and would raise some of the same questions that surrounded President Ford’s ascension to the Presidency (President Nixon had selected Ford to fill the vacancy left by the resignation of Vice President Spiro Agnew, and then resigned himself, elevating Ford to the Presidency without Ford’s ever having been elected at a national level), but would take those questions one step further; since Bush would be selecting (and Congress would be confirming) this new Vice President knowing in advance  that this person would absolutely become President when Bush hit the two-year limit.  This would seem to challenge even the most basic tenets of a democracy.

The 12th Amendment

The 12th Amendment prohibits a person “ineligible to the office of President” from being “eligible to that of Vice President” – but does “ineligible to the office of President” mean ineligible to be elected to the office of President, or does it mean ineligible to serve as President?  Today these are two very different issues (for example, both former President Bush and former President Clinton remain eligible to serve as President for another two years, but neither can be elected President again), but when the 12th Amendment was ratified in 1804, 147 years before the 22nd Amendment and its Presidential term limits were added to the Constitution (in 1951), there were no Presidential term limits which could render a person “ineligible to the office of President”.  In other words, when the 12th Amendment was written, the only way a person would be “ineligible to the office of President” would be that they did not meet the basic requirements found in Article II, Section 1 (be a natural-born citizen, at least 35 years of age, and at least 14 years a resident of the United States).  There was no difference at that time between a person’s eligibility to serve as President and their eligibility to be elected President – anyone eligible to serve could be elected, regardless of whether or not they had previously been President or for how long.  Clearly, then, this provision’s reference to someone being “ineligible to the office of President” could only have originally referred to those provisions found in Article II, Section 1.

It would seem that, as long as President Bush still has two years of Presidential eligibility remaining under the 22nd Amendment, he would remain eligible to the office of Vice President under the 12th Amendment, and could therefore serve as Vice President (as noted above, for example, he could become Vice President if a vacancy in that office were to arise with less than two years remaining in the term).
But could he be elected – to a four-year term – as Vice President?  Does “ineligible to the office of President” exclude a person ineligible to serve a full term as President, due to the limitations imposed by the 22nd Amendment, from being elected Vice President?
Opinions on this point vary.  The Constitution does not provide a definitive answer to this question, and places no limitation of any kind on time spent in the Vice Presidency, either by itself or in combination with any time spent as President.  Back in 2004, when it was rumored that he was being considered for selection as John Kerry’s running mate, former President Bill Clinton ended that speculation by taking the position that the combined provisions of the 12th and 22nd Amendments meant that, since he was not eligible to serve a full term as President, he could not run for a full term as Vice President.
Not everyone agrees with him on this point, however.  For example, an opinion piece for Politico during the 2012 election cycle argued that, not only could Clinton be selected for the VP slot, but that President Obama would have improved his chances for reelection by choosing him (that last part was highly dubious, to say the least).  Others have noted the ambiguity that exists on this issue;  Factcheck.org calls the question a “conundrum” and notes that “finding out would certainly make for an interesting Supreme Court case”, and Peter Baker of the  Washington Post, back in 2006, wrote about how a “sampling of opinion from professors of constitutional law, former White House lawyers and even a couple of federal judges reveals a simmering disagreement on whether a president who has already served two terms can be vice president.”
The only correct answer to our question, then, would seem to be…maybe.  Therefore, until this question is tested and decided more definitively by the Supreme Court, this issue must remain – at least for now – in the unresolved category of Constitutional Quandaries and Conundrums.
 

 _________________________________________________________ 

CONSTITUTIONAL QUANDARY AND CONUNDRUM #2:    Under the Constitution of the United States of America, what happens if a state has not finalized new district boundaries in time for the election following the census?
There are three parts of the Constitution that are relevant here:

  • Section 2 of the 14th Amendment specifies that:  “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.
  • Article I, Section 2 requires that the census (the “actual enumeration”) be conducted every ten years:  “The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.
  • Article 1, Section 4 gives the states a wide latitude regarding congressional elections:  “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, except as to the places of choosing Senators.”  It should be noted, however, that Congress has used the power to “make or alter such regulations” to set a uniform date for nation-wide Congressional elections.

 

The 14 Amendment’s provision is interesting from the perspective of the current immigration debate.  Note that the reapportionment is based on each state’s “respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”  That’s “the whole number of persons” – not just “citizens”.  Those who advocate for congressional reapportionment to be based only on the number of citizens  in a given state (such as was introduced in November of 2009 by Republicans in both Houses) need to understand that, while perhaps the time has come to have the discussion on this (remember that the 14th  Amendment was written at a time – the 1860’s – when illegal immigration simply was not an issue), this change could not be accomplished simply by passing a law – it will take nothing short of a constitutional amendment to make that change.
But I digress…
The provision from Article I, Section 2 has come to mean that the census will be conducted in every decade year – that is, years ending in a zero.  The 2010 census was just the latest in a 230-year history of American census-taking.  The new districts that were drawn as a result of the census findings were first in effect for the 2012 elections.  The whole process will have to be repeated in 2020, with new districts being ready for the 2022 elections.
Article I, Section 4’s provision granting the states the power to set “the times, places and manner of holding elections for Senators and Representatives” still applies to the congressional primaries, even though in the 1870’s Congress set the Tuesday following the first Monday in November as the nation-wide date for the general Congressional elections (2 USC § 7).
This seems fairly straightforward.  The Constitution requires that, every ten years, an enumeration (the Census) is conducted to count the population of each state, and the number of Representatives each state gets is determined by the result.  Elections are then held on the same day in every district across the country.  Simple, right?
Well, no – not really.
The federal government must conduct the actual census – “in such manner as they [Congress] shall by law direct” – but it then falls on the states to draw district boundaries within their state to create the number of congressional districts determined by the census.  Redistricting processes vary from state to state, but the battles over the result are fairly universal.  Drawing district boundaries can determine whether that district will be safe for one of the political parties or whether it will be relatively competitive.  The cumulative effect of redistricting can have a profound impact on which party holds the majority in the House of Representatives, meaning that the fights over redistricting can be among the hardest fought political battles.  The two political parties will engage in fierce fights over the proposed boundary lines, Governors will veto plans (if allowed under state law), court challenges will be filed, and so on.  This can be a very time-consuming process.
When the results of the 2010 census came in, the states began the process of drawing new district boundaries in advance of the 2012 elections.  Even those states that did not see a change in the number of Representatives allotted to them had to perform the redistricting to reflect population shifts within the state over the previous decade, since the Supreme Court has required that, to the extent possible, each district contain approximately the same number of people [in Wesberry v. Sanders (1964), the Court ruled that “as nearly as practicable one man’s vote in a congressional election is to be worth as much as another’s”.  This is often referred to as “one man, one vote”].  The only exceptions were the seven states – Alaska, Montana, Wyoming, Vermont, Delaware, North Dakota, and South Dakota – that have populations so low they are only allotted the minimum of one Representative each, who will represent the entire state (this is called an “at-large” district), so no redistricting is necessary.  The other 43 states – from those 5 states that just have to cut the state in half to create 2 districts (Hawaii, Idaho, New Hampshire, Maine, and Rhode Island) to California, which has to create 53 districts – all had to complete their redistricting in time for the 2012 elections.
While the Constitution – as interpreted by the Supreme Court – requires the states to redraw district boundaries, it is left up to the states to decide precisely how to draw them.  Some states have the State Legislatures draw the maps, subject to the Governor’s veto, while other states have special (supposedly non-partisan) commissions draw the new districts.  Most states impose deadlines for each step along the way in order to ensure that the maps are completed on time, but many have no real consequences or other means to enforce those deadlines.  Whatever method is used, the process takes time, and the results can be challenged in state and/or federal court – which takes more time.  Clearly, there are plenty of potential delays that could prevent the new district boundaries from being finalized in time for the elections – or, more specifically, in time for the filing deadlines for candidates’ names to appear on the ballot in those elections.  Obviously, candidates cannot file to run in districts that don’t yet exist.  Realistically, those candidates also need a reasonable amount of time after the boundaries become official to decide whether to run (in other words, there must be a filing  period, not just a filing  deadline), meaning the actual deadline for completing the redistricting process is even earlier than the filing deadline.

So what happens if the district maps are not ready in time?

The first step that would be likely to happen would be to utilize whatever back-up plan is already in place to get a map –  any  map – ready for the elections (many states turn to the state courts to fill this role).  After that, the state may have to change its filing deadline for the primary, and possibly even the primary election date itself.  There is nothing in the United States Constitution that prevents a state from doing this; in fact, there is nothing in the United States Constitution that requires the states to hold primary elections at all, meaning that the states actually have until the general election to work this out before a constitutional crisis would develop.  Eventually, however, the state will run out of time; the date of the general congressional election is set by the Congress (it falls on the Tuesday after the first Monday in November), and cannot be changed by a state, since the Congress has mandated that the date be the same throughout the United States.
If, hypothetically, a state has not passed a redistricting map in time for even the general election, what would happen next is unclear.  Let’s examine some possibilities:

  • Could the federal government impose a redistricting map on the state in question?  No.  The United States Constitution does not give the federal government the power to impose a redistricting map on a state.  Redistricting is – and has always been – a state function, and the 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”) makes it clear that the federal government can’t simply assume that power.
  • Could the courts impose a redistricting map on the state?   Possibly – at least for state courts (federal courts could run into the same 10th Amendment issue noted above).  If the courts can find a given redistricting plan unconstitutional (eg:  if the plan was found to be racially discriminatory), imposing a court-drawn map which satisfies Constitutional requirements should also be possible.  In some states the state courts are a sort of “Plan B”, which can draw up redistricting plans if the normal route is unsuccessful.
  • Could the state simply elect all of their Representatives on an “at-large” basis?   Maybe.  This has actually been done before.  For example, from 1813 to 1823, when Delaware had two representatives, both were elected statewide on an “at-large” basis.  It is unclear, however, what modern courts would think about this in light of the “one man, one vote” standard, since each of the Representatives from that state would represent significantly more people than representatives from other states.  Another example is Maryland, which was allocated an 8th Representative following the 1960 census.  Rather than re-drawing the existing districts, Maryland simply added an at-large district to its 7 pre-existing districts, and from 1963 to 1967, Democrat Carlton Sickles represented the at-large district.  However, a new map with 8 districts (and eliminating the at-large district) was drawn for the 1966 elections in order to be in compliance with the Supreme Court’s 1964 “one man, one vote” ruling.   It is reasonably clear from this example that a mix of drawn districts and at-large seats would violate the Supreme Court’s “one man, one vote” standard.
  • Could the state simply continue to use the existing district boundaries left over from the previous census?  Maybe.  Population shifts within the state over the previous decade would make this problematic because of the “one man, one vote” standard.  On the other hand, this may be the most viable option – at least for those states that will be keeping the same number of districts.  If nothing else, this could serve to buy some time to get new districts drawn.  For those states that will either gain or lose seats, however, this would obviously not be workable.

So…what would actually happen?  The 2012 election cycle gave us the answer!

In November, 2011, the Federal District Court for  the District of Columbia rejected the Republican-drawn Texas redistricting map, ruling that an “improper standard or methodology” was used to draw districts that would represent minorities.  Meanwhile, the filing period for the congressional primary elections in Texas was set to  begin on November 28th  and end on December 12th.  A Texas state court in San Antonio had to quickly draw an interim map to be used for those primary filings, and for the 2012 elections.  By January of 2012, Texas had been forced to delay its primary while the court battle over its redistricting map played out.  On January 20, 2012, the United States Supreme  Court threw out the judge-drawn Texas map, saying that it did not pay enough deference to the maps drawn by the legislature.  This threw the whole process into limbo again, as the courts tried again to draw a satisfactory map.   In August, 2012, a three-judge panel from the US District Court for the District of Columbia threw out the latest court-drawn redistricting map   from Texas, saying in a 154-page opinion that the maps “have the effect of denying or abridging the right to vote on account of race or color, or language minority group,”  The state’s Attorney General appealed the ruling to the United States Supreme Court, and on September 19, 2012,  the Supreme Court allowed the state of Texas to use the maps   for the 2012   election only, giving the Texas State Legislature more time to draw final maps in time for the 2014 midterms.

 

_________________________________________________________

CONSTITUTIONAL QUANDARY AND CONUNDRUM #3:   Under the Constitution of the United States of America, can states secede from the Union?
[NOTE:  This “Constitutional Quandary and Conundrum” was inspired by the rash of secession petitions that were filed with the White House following the re-election of Barack Obama as President of the United States.  This article will unavoidably touch on the various practicalities that weigh so heavily against actual secession (including the fact that the full might of the United States Armed Forces would be unleashed on the states in question), but its main focus will be on whether secession is actually allowed or prohibited under the Constitution of the United States.]
First, it should be noted that the concept of states seceding from the Union is not directly addressed anywhere in the Constitution of the United States (which is why this is being written as a “Constitutional Quandary and Conundrum”), despite the history surrounding secession and the American Civil War.  Nevertheless, there are several provisions in the Constitution that give a definite indication on the issue and are therefore relevant to the discussion:

  • Article I, Section 8 grants Congress the power “To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions
  • Article I, Section 10 reads, “No state shall enter into any treaty, alliance, or confederation…” and “No state shall, without the consent of Congress…keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war…
  • From Article II, Section 2:  “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States…
  • From Article IV, Section 4:  “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion…
  • From Article VI: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
  • From Amendment XIV, Section 3:  “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
  • From Amendment XIV, Section 4:  “Neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States…

Amendment XIV

I will start with the 14th Amendment, because the terminology used here is important for the discussion of the other provisions.  Both Sections 3 and 4 make reference to “insurrection or rebellion” against the United States.  This Amendment was passed shortly after the end of the Civil War (the Civil War ended on April 9, 1865; the 14th Amendment was proposed June 15, 1866, and ratified July 28, 1868).  The phrase “insurrection or rebellion” refers to the actions of those states that had “seceded” from the Union and joined the Confederacy – the act that led to the American Civil War.  The United States government never considered these states to have left the Union; instead, the only reference to them having done so that is found in the Constitution describes them as having engaged in “insurrection or rebellion” against the United States.  In defining those events in these terms, the 14th Amendment to the Constitution makes it clear that these states never actually left the Union – and therefore secession never actually occurred, at least Constitutionally.
Merriam-Webster defines “insurrection” as “an act or instance of revolting against civil authority or an established government”, and “rebellion” as “open, armed, and usually unsuccessful defiance of or resistance to an established government”.  Both definitions refer to an act against an “established government”.  The federal government of the United States is indisputably the “established government” over every state in the Union.  Just as happened during the American Civil War, while the seceding states may consider themselves to now be independent of the United States and free from its jurisdiction, the federal government would not consider that to be the case.  Instead, the United States government would regard these states as still being under its jurisdiction, but engaged in an “insurrection or rebellion” against the United States, and would respond accordingly – leading to a second American Civil War.  This is a crucial point to this discussion, and would seem to indicate – at least indirectly – that secession is not allowed under the Constitution.  The term “Civil War” is defined by Merriam-Webster as “a war between opposing groups of citizens of the same country”.  By definition, then, the Civil War was  not  a war between the United States and a new country called “The Confederate States of America”; instead it was an internal struggle entirely within The United States of America – and a second American Civil War would fall into the same category.

Article I, Section 8

This Section of the Constitution grants several specific powers to the United States Congress, including the one listed here; “to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.”  As noted above, a state that tries to secede from the Union remains part of the Union under the 14th Amendment, but is considered to be engaging in an insurrection (or rebellion) against the United States, and Congress would have the power under the Constitution to “provide for calling forth the militia” to suppress that insurrection.  If Congress has been granted the power to “call forth the militia” to suppress such an insurrection, then clearly that insurrection would not be tolerated under the Constitution.  Again, this would seem to indicate – at least indirectly – that secession is not allowed under the Constitution.

Article I, Section 10

This Section of the Constitution contains two provisions related to this discussion, both of them placing limitations on the powers of states.  The first provision says that “No state shall enter into any treaty, alliance, or confederation…”  The states that seceded at the beginning of the American Civil War clearly violated this provision when they created an alliance with each other and formed the Confederate States of America.  They also attempted (unsuccessfully) to form alliances with other countries to help them during the Civil War.  The fact that these states had violated this provision – and remember, the United States government considered them to remain part of the United States and therefore under its jurisdiction – was part of why these states were considered to be engaged in “insurrection or rebellion”.
The second provision in this section reads “No state shall, without the consent of Congress…keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war…”  This makes it clear that Congress must approve any of the listed actions engaged in by a state, and Congress is not going to give that consent to seceding states.  Any state that tried to secede would need to fend off the inevitable military response from the United States, and would have to have strong military allies to have even a remote chance of doing so, and this provision prohibits those states from defending themselves militarily or from gaining those allies. As stated above, the United States government would consider these states to still be part of the United States and therefore under its jurisdiction and bound by the Constitution of the United States, regardless of the fact that they were engaged in “insurrection or rebellion” against America.
These two provisions, taken together, would make it impossible – at least Constitutionally – for any state to survive as an independent nation, especially when faced with the certain military conflict with the United States (again, this is a theoretical Constitutional discussion; obviously the states that joined the Confederacy did all of these things without the consent of Congress.  If we’re going to talk realistically, however, while in 1860 the Confederacy may have thought it had a chance of success, no seceding state would have any chance of success at all against today’s United States military, and no nation on earth would choose to incur the wrath of the United States military by entering into such an obvious lost cause as an alliance with seceding states).  As with the provisions discussed above, these provisions would seem to indicate that secession is not allowed.

Article II, Section 2

The President’s role as Commander-in-Chief of the armed forces includes the role of Commander-in-Chief “of the militia of the several states, when called into the actual service of the United States”.  Assume for a moment that the President calls the state militias into “actual service of the United States” to help suppress the “insurrection or rebellion” against the United States deemed to be going on in the states that secede.  If members of those state militias in seceding statse side with their home states instead of with the United States, they will be in violation of direct orders from their Commander-in-Chief, and when (not if) their home state loses the military conflict that would result from the secession, those members of the state militias would face court-martials for that act.  This is yet another way that the Constitution, however indirectly, indicates that secession would not be allowed.

Article IV, Section 4

The provision that the United States government would be obligated to guarantee each state a republican form of government and protect them from invasion would be nonsense if states were allowed to secede.  If states were allowed to do so, then how – or for that matter, why – would the United States be responsible for guaranteeing what type of government existed in those states?  Furthermore, how would the United States be obligated to protect them from invasion other than by treaty – something states are forbidden to enter into?  Don’t forget – the secession would not be recognized by the United States, so these states would still be seen (Constitutionally at least) as “states in this union”.  Once again, the Constitution indirectly indicates that secession would not be allowed.

Article VI

The Supremacy clause, declaring that the Constitution and laws of the United States are the “Supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding”, is by far the clearest provision in terms of secession.  Regardless of what any state puts in its State Constitution or any law it may pass, the United States Constitution and federal laws supersede the state Constitution and state laws when those laws are in conflict (this is an entirely separate issue from the 10th Amendment, which grants to the states – or the people – all powers not specifically granted to the federal government nor denied to the states).  If a state tries to secede and passes a law or writes its State Constitution to reflect that, it doesn’t matter – it will be superseded by federal law and the United States Constitution.  While this clause does not mention secession directly, it nevertheless makes it quite clear that no state law or provision in a state constitution can overrule the “Supreme Law of the Land”.

Other Indications

The Constitution addresses how states can be added to the Union, and how new states could be formed from parts of existing states (Article IV, Section 3), but there is nothing in the Constitution describing how states could leave the Union.   On the other hand, while there are several provisions in the United States Constitution – discussed above – that clearly prohibit secession (however indirectly they may do so), there is absolutely nothing in the Constitution to suggest that states  can  secede from the Union.  The closest it comes to doing so is the 10th Amendment, and that only gives states those powers not granted to the federal government or denied to the states.  Even under the 10th Amendment, when federal power – specifically granted by the Constitution to the federal government, as discussed above – is in conflict with state power, the federal power takes precedence as “the Supreme Law of the Land”.  In my view, the Constitution clearly does not allow for states to secede.  There are other factors that should enter into this discussion, however, apart from the Constitution.

The Declaration of Independence

First, many who have advocated for secession quote the following from the Declaration of Independence as support for their position: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness“.  It should be pointed out, however, that while the Declaration is a statement of our core founding beliefs and should be revered as such, it does not, nor has it ever, carried the force of law.  It makes for a great rallying cry for the secessionists, but it is outweighed by the Constitution (not to mention the lessons of the Civil War and American tradition).  It has never been legal to advocate for the overthrow of the United States government, regardless of the sentiments expressed in the Declaration of Independence.  In other words, it’s just not enough.

Presidential Proclamation 153

Another factor is that there is actually a Presidential Proclamation that expressly forbids secession.  It is Presidential Proclamation 153, made by President Andrew Johnson on April 2, 1866.  The relevant section reads, “It is the manifest determination of the American people that no State of its own will has the right or the power to go out of, or separate itself from, or be separated from, the American Union, and that therefore each State ought to remain and constitute an integral part of the United States”.  The wording addresses the issue directly and leaves no doubt that states cannot secede.  But how binding is a Presidential Proclamation like this one?  Well, it’s not part of the Constitution, and it’s not a law passed by Congress, and it does not carry the same force that either of those would.  It is, however, a statement reflecting the official policy of the United States of America – unless and until it is revoked or overturned by a new Presidential Proclamation, a law, or a Constitutional Amendment.  In fact, this particular Proclamation is no less binding than any other Presidential Proclamation that has never been reversed – the Emancipation Proclamation is by far the most well-known – and this one has never been reversed.  In other words, unless and until the government of the United States of America proclaims otherwise, it is the official policy of the United States government that no state can secede from the Union.

The Texas “Right to Secede” Myth

The final additional factor I will include here is actually the debunking of a myth and applies specifically to Texas.  Texans just love to claim that Texas only joined the Union on the specific condition that they would be able to secede if they chose to do so, but that is simply not true.  It’s just part of the Texas mythology.  No such provision was ever included in the agreement to annex Texas as part of the United States of America.  Here is the text of the three actual documents that admitted Texas to the Union:

Joint Resolution for Annexing Texas to the United States Approved March 1, 1845


Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress doth consent that the territory properly included within and rightfully belonging to the Republic of Texas, may be erected into a new State to be called the State of Texas, with a republican form of government adopted by the people of said Republic, by deputies in convention assembled, with the consent of the existing Government in order that the same may by admitted as one of the States of this Union.


2. And be it further resolved, That the foregoing consent of Congress is given upon the following conditions, to wit: First, said state to be formed, subject to the adjustment by this government of all questions of boundary that may arise with other government, –and the Constitution thereof, with the proper evidence of its adoption by the people of said Republic of Texas, shall be transmitted to the President of the United States, to be laid before Congress for its final action on, or before the first day of January, one thousand eight hundred and forty-six. Second, said state when admitted into the Union, after ceding to the United States all public edifices, fortifications, barracks, ports and harbors, navy and navy yards, docks, magazines and armaments, and all other means pertaining to the public defense, belonging to the said Republic of Texas, shall retain funds, debts, taxes and dues of every kind which may belong to, or be due and owing to the said Republic; and shall also retain all the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of said Republic of Texas, and the residue of said lands, after discharging said debts and liabilities, to be disposed of as said State may direct; but in no event are said debts and liabilities to become a charge upon the Government of the United States. Third — New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution; and such states as may be formed out of the territory lying south of thirty-six degrees thirty minutes north latitude, commonly known as the Missouri Compromise Line, shall be admitted into the Union, with or without slavery, as the people of each State, asking admission shall desire; and in such State or States as shall be formed out of said territory, north of said Missouri Compromise Line, slavery, or involuntary servitude (except for crime) shall be prohibited.


3. And be it further resolved, That if the President of the United States shall in his judgment and discretion deem it most advisable, instead of proceeding to submit the foregoing resolution of the Republic of Texas, as an overture on the part of the United States for admission, to negotiate with the Republic; then,


Be it resolved, That a State, to be formed out of the present Republic of Texas, with suitable extent and boundaries, and with two representatives in Congress, until the next appointment of representation, shall be admitted into the Union, by virtue of this act, on an equal footing with the existing States, as soon as the terms and conditions of such admission, and the cession of the remaining Texian territory to the United States shall be agreed upon by the governments of Texas and the United States: And that the sum of one hundred thousand dollars be, and the same is hereby, appropriated to defray the expenses of missions and negotiations, to agree upon the terms of said admission and cession, either by treaty to be submitted to the Senate, or by articles to be submitted to the two houses of Congress, as the President may direct.

Approved, March 1, 1845.

Ordinance of Annexation Approved by the Texas Convention on July 4, 1845

An Ordinance
Whereas,
the Congress of the United States of America has passed resolutions providing for the annexation of Texas to that Union, which resolutions were offered by the President of the United States on the first day of March, 1845; and


Whereas,
the President of the United States has submitted to Texas the first and second sections of said resolutions, as the basis upon which Texas may be admitted as one of the States of the said Union; and


Whereas,
the existing Government of the Republic of Texas, has assented to the proposals thus made, –the terms and conditions of which are as follows:
“Joint Resolutions for annexing Texas to the United States”


Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress doth consent that the territory properly included within and rightfully belonging to the Republic of Texas, may be erected into a new State to be called the State of Texas, with a republican form of government adopted by the people of said Republic, by deputies in convention assembled, with the consent of the existing Government in order that the same may by admitted as one of the States of this Union.


2nd. And be it further resolved, That the foregoing consent of Congress is given upon the following conditions, to wit: First, said state to be formed, subject to the adjustment by this government of all questions of boundary that may arise with other government, –and the Constitution thereof, with the proper evidence of its adoption by the people of said Republic of Texas, shall be transmitted to the President of the United States, to be laid before Congress for its final action on, or before the first day of January, one thousand eight hundred and forty-six. Second, said state when admitted into the Union, after ceding to the United States all public edifices, fortifications, barracks, ports and harbors, navy and navy yards, docks, magazines and armaments, and all other means pertaining to the public defense, belonging to the said Republic of Texas, shall retain funds, debts, taxes and dues of every kind which may belong to, or be due and owing to the said Republic; and shall also retain all the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of said Republic of Texas, and the residue of said lands, after discharging said debts and liabilities, to be disposed of as said State may direct; but in no event are said debts and liabilities to become a charge upon the Government of the United States. Third — New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution; and such states as may be formed out of the territory lying south of thirty-six degrees thirty minutes north latitude, commonly known as the Missouri Compromise Line, shall be admitted into the Union, with or without slavery, as the people of each State, asking admission shall desire; and in such State or States as shall be formed out of said territory, north of said Missouri compromise Line, slavery, or involuntary servitude (except for crime) shall be prohibited.


Now in order to manifest the assent of the people of this Republic, as required in the above recited portions of said resolutions, we the deputies of the people of Texas, in convention assembled, in their name and by their authority, do ordain and declare, that we assent to and accept the proposals, conditions and guarantees, contained in the first and second sections of the Resolution of the Congress of the United States aforesaid.
In testimony whereof, we have hereunto subscribed our names


Thomas J. Rusk
President
followed by 61 signatures
Attest
James H. Raymond
Secretary of the Convention.

Joint Resolution for the Admission of the State of Texas into the Union.

Whereas
the Congress of the United States, by a joint resolution approved March the first, eighteen hundred and forty-five, did consent that the territory properly included within, and rightfully belonging to, the Republic of Texas, might be erected into a new State, to be called _The State of Texas,_ with a republican form of government, to be adopted by the people of said republic, by deputies in convention assembled, with the consent of the existing government, in order that the same might be admitted as one of the States of the Union; which consent of Congress was given upon certain conditions specified in the first and second sections of said joint resolution; and whereas the people of the said Republic of Texas, by deputies in convention assembled, with the consent of the existing government, did adopt a constitution, and erect a new State with a republican form of government, and, in the name of the people of Texas, and by their authority, did ordain and declare that they assented to and accepted the proposals, conditions, and guaranties contained in said first and second sections of said resolution: and whereas the said constitution, with the proper evidence of its adoption by the people of the Republic of Texas, has been transmitted to the President of the United States and laid before Congress, in conformity to the provisions of said joint resolution:


Therefore–
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the State of Texas shall be one, and is hereby declared to be one, of the United States of America, and admitted into the Union on an equal footing with the original States in all respects whatever.


Sec. 2. And be it further resolved, That until the representatives in Congress shall be apportioned according to an actual enumeration of the inhabitants of the United States, the State of Texas shall be entitled to choose two representatives.


Approved, December 29, 1845.

As you can see in reading these documents, there is no provision giving Texas the right to secede – in fact quite the opposite:  the actual language specifies that Texas would be “admitted into the Union on an equal footing with the original States in all respects whatever” (my emphasis).  Texas was clearly admitted to the Union on the same terms as any other state – “in all respects whatever”.  There were no special arrangements or considerations, regarding the right to secede or anything else.  The United States government clearly never agreed to any provision saying that Texas has the right to secede.
So where does this idea – that Texas entered the Union with the understanding it could get out whenever it chose to do so – come from?  The answer is found in the Texas State Constitution.  The very first provisions, immediately following the Preamble, lay out Texas’ alleged claim.  Article I, Section 1 reads, “Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.”  So Texas believes that “the perpetuity of the Union” – meaning whether Texas remains part of the United States – depends on how Texans feel about how free they are to govern themselves.  Texas is the only state that has such a provision in its Constitution.
Article I, section 2 reads, “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.”  This language (“giving the people the “inalienable right” to “alter…or abolish” their government) is reminiscent of that found in the Declaration of Independence, which, as noted above, doesn’t carry the weight of law.  As part of their State Constitution, however, it does carry the weight of law – but only the weight of state law, not federal law.
This, then, is Texas’ entire claim to the right to secede.   Of course, Texas did try to secede from the Union once – and don’t forget, that was  after  they joined the Union while supposedly retaining the right to secede, and  after  the above provisions were written into the Texas State Constitution – and it didn’t go so well for them.   The problem for Texas’ claim is found in the United States Constitution – specifically in Article VI, which declares that the Constitution of the United States (which, as I have shown, does not allow states to secede) is the ““Supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding”.  It doesn’t matter what provisions Texas (or, for that matter, any other state) may put in its state Constitution.  The United States Constitution does not allow states to secede, and that fact overrules these provisions in the Texas State Constitution, because the United States Constitution is the Supreme Law of the Land.  The Texas Constitution even acknowledges that Texas is “subject only to the Constitution of the United States”.
One thing Texans conveniently leave out when they claim to have the “right to secede” is that the Supreme Court actually decided against Texas having that right a long time ago – back in 1869, in a decision called Texas v. White.  Writing for the majority, Justice Salmon P. Chase (who had been Secretary of the Treasury under President Abraham Lincoln before Lincoln appointed him to the Supreme Court) wrote that, under the Articles of Confederation…”the Union was solemnly declared to ‘be perpetual.’   And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained ‘to form a more perfect Union.’ It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?”  He then addressed the specific circumstances of Texas, writing, “When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.”  In summing up the decision, Justice Chase wrote, “Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.”
In other words, Texas’ claim to the “right to secede” is not worth the paper it is printed on.  In the 1860’s, the states that tried to secede – including Texas – found themselves facing the full military might of the United States of America to prevent their secession, and they lost.  Make no mistake:  the same thing would absolutely happen if they – or any other state – ever tried to secede again.
So…
Under the Constitution of the United States of America, can states secede from the Union?  The answer is that, despite the lack of any Constitutional provision that addresses the question directly, it seems clear that the Constitution does not allow secession.  The last time states tried to secede they paid a stiff price – in both blood and treasure – and ended up staying in the Union anyway.
I wouldn’t recommend trying it again.

 

 

_______________________________________________________________

 

CONSTITUTIONAL QUANDARY AND CONUNDRUM #4:    Under the Constitution of the United States of America, would the Vice President preside over his own impeachment trial in the Senate?

 

[NOTE: No Vice President has ever been impeached, although two – Schuyler Colfax (who served under President Ulysses S. Grant) and Spiro Agnew (who served under President Richard Nixon) – came close. Their situations are addressed in the discussion below.]

 

There are four relevant passages in the Constitution on this question:

 

  • Article I, Section 2 specifies that:  “The House of Representatives…shall have the sole power of impeachment.
  • Article I, Section 3 specifies that: “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.
  • Article I, Section 3 also specifies that:  “The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
  • Article II, Section 4 reads: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

 

It is important to any discussion of impeachment to understand the process and the terms involved, and many do not. With that in mind, here are the “basics” when it comes to impeachment:

 

Article 1, Section 2 of the Constitution gives the House of Representatives “the sole power of impeachment”, but this does not mean the House can remove anyone from office. If the impeachment process is thought of as being somewhat akin to a criminal trial (there are certainly similarities, but there are also key differences), impeachment would roughly correspond to an indictment. It is an allegation of wrongdoing; basically the House is accusing the individual of an impeachable offense.

 

What exactly is an “impeachable offense”? This is defined in Article 2, Section 4 as “treason, bribery, or other high crimes and misdemeanors” – a phrase that is open to interpretation, to say the least. The best definition I have ever found for what actually constitutes an impeachable offense comes from none other than Gerald Ford, who said in 1970, when he was the House Minority Leader and the House was considering the (ultimately unsuccessful) attempt  to impeach Supreme Court Justice William O. Douglas, “The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office.”  The future President Ford was right – impeachment is a purely political act, carried out by politicians against politicians (and the occasional judge).  Basically, if you can get a majority of the House of Representatives to vote for impeachment over any given act, that act is an impeachable offense. However, the Constitutional definition of what constitutes an impeachable offense – “treason, bribery, or other high crimes and misdemeanors” – seems to indicate that the offense(s) must be criminal in nature.  While treason and bribery are clearly-defined crimes under the law, there is some dispute (OK – a lot of dispute) over the meaning of the phrase “High Crimes and Misdemeanors”, which historically goes back to English Common Law.  Most Constitutional scholars agree that the phrase can include serious abuses of power – even if they are technically not criminal acts – that threaten our Constitutional form of government, in addition to actual violations of the law.

 

History supports this interpretation. Two American Presidents – Andrew Johnson and Bill Clinton – have been impeached by the House and faced trial in the Senate (both were acquitted), and a third President – Richard Nixon – resigned from office rather than face certain impeachment.

 

In the case of President Johnson, impeachment was an overtly political act.  Johnson was a Democrat who had assumed the Presidency upon the assassination of Republican President Abraham Lincoln, and was extremely unpopular with the Republican majority in Congress.  He tried to fire the Secretary of War, Edwin Stanton, who had strong allies in the Congress, but the Congress had passed a law called “An act regulating the tenure of certain civil offices” (aka the “Tenure in Office Act”), which was based on the argument that, since the Constitution requires the Senate’s consent to hire cabinet members, the Senate’s consent must be required to fire them.  The Republican-controlled Congress refused to go along with the firing of Stanton, and when Johnson persisted, the House impeached Johnson.  No fewer than eleven articles of impeachment were passed against Johnson, all of them relating to President Johnson’s firing of Secretary Stanton and his installation of Major-General Lorenzo Thomas, the Adjutant-General of the Army, as the interim Secretary of War. Most of the articles accused the president of acting “with intent to violate the Constitution of the United States”, or some variation thereof.  President Johnson was acquitted in the Senate by a single vote.

 

In Bill Clinton’s case, he was impeached on a charge of perjury relating to his testimony during a deposition in a civil case filed by Paula Corbin Jones (he was also charged with obstruction of justice, the alleged “obstruction” included the perjury), but few doubted that the impeachment was politically driven.  The alleged perjury had to do with President Clinton’s denial of “sexual relations” with a White House intern named Monica Lewinsky.  However, lawyers for the two sides had agreed upon a specific definition of the term “sexual relations” for purposes of the deposition, and after reading the definition carefully, Clinton testified that he had not had “sexual relations” with Lewinsky under that definition (in the same deposition he did concede that he had “sexual relations” with another woman, Gennifer Flowers, under the same definition).  It all came down to the interpretation of that definition – hardly an issue worthy of impeachment (astonishingly, the definition could be read in a manner that, given the nature of the activities that took place between President Clinton and Lewinsky, technically meant that, while Lewinsky was indeed having “sexual relations” with President Clinton, the President was simultaneously not having “sexual relations” with Lewinsky, which is obviously ludicrous).  President Clinton was acquitted in the Senate on an almost straight party-line vote.

 

President Richard Nixon was about to be impeached by the full House of Representatives when he resigned in 1974. The House Judiciary Committee had passed three Articles of Impeachment, mixing clear criminal allegations with political ones: one article for obstruction of justice, one for abuse of power, and one for refusing to comply with congressional subpoenas. There is no doubt that the full House would have impeached President Nixon, and that the Senate would have voted to convict and remove President Nixon from office (in fact, President Nixon announced his decision to resign the day after the leaders of the Republican Party in each house of Congress, along with Senator Barry Goldwater, met with Nixon at the White House to advise him that they did not have the votes to save him, and that Goldwater himself would vote for Nixon’s conviction on the abuse of power).

 

All three of these historical events involved political allegations in conjunction with criminal behavior. While the House of Representatives has the power to impeach any official they wish for any reason they wish (as long as they can get a majority of the House to go along with it, as then-House Minority Leader Gerald Ford correctly stated), impeachment is not a step to be taken lightly and is a relatively rare occurrence. Even if the House impeaches an individual, they are not the ones who determine guilt or innocence.

 

As Article 1, Section 3 makes clear, it is the Senate that determines the actual guilt or innocence of the accused individual. Once Articles of Impeachment have passed the House and been sent to the Senate, the Senate essentially becomes the jury, with House “Managers” (Representatives chosen by the House leadership) acting as prosecuting attorneys. If the accused individual is the President of the United States – but only if it’s the President – the Chief Justice of the Supreme Court presides over the Senate trial. For any other accused individual, the Senate would be presided over by the President of the Senate, which, according to Article I, Section 3, is the Vice President of the United States (which should give you an idea where this discussion is heading). The accused individual is allowed legal representation, evidence and testimony are presented, and the Senators ultimately vote whether the accused individual is guilty or not guilty. If two-thirds or more of the Senators present for the vote find the accused guilty, that person is removed from office.

 

That pretty much covers the basics of impeachment. Now let’s look at a little relevant history:

 

As stated above, two Vice Presidents have come close to being impeached. The first was Schuyler Colfax, who served as Vice President during President Ulysses S. Grant’s first term (1869-1883). Colfax got caught up in the “Credit Mobilier” scandal that rocked the Grant Administration, and was facing almost certain impeachment over his activities relating to that scandal. However, Colfax had been in the House since 1855, and had served as Speaker of the House for over 5 years, stepping down only to be inaugurated as Vice President, and remained popular with House Republicans. By the time the Republican majority in the House of Representatives recognized that Colfax had to go and got around to considering his impeachment, President Grant had been re-elected with a different running mate, Senator Henry Wilson of Massachusetts (an incumbent President running for re-election with a different running mate for the second term was actually common practice at the time), so the House knew that there would be a new Vice President in a few months.  Since Colfax would be out of office soon anyway, they didn’t bother with the impeachment.

 

In the case of Vice President Spiro Agnew, who served as Vice President under President Richard Nixon, the Department of Justice (DOJ) had investigated Agnew and found he had accepted “over $100,000” in bribes while serving as Baltimore County Executive and as Governor of Maryland, and that he had even continued accepting bribes as Vice President. Agnew was charged with tax evasion (for not reporting the bribe money as taxable income), and a plea bargain was reached. Agnew pled “No Contest”, was fined $10,000 (the amount of tax owed on the “unreported income”) and was given three years’ probation. In addition, he had to resign the Vice Presidency, which he did on October 10, 1973. The agreement was met with derision by many who saw the $10,000 fine as a joke, given the amount Agnew had received in bribes. A civil lawsuit was filed seeking to force Agnew to give the bribe money to the Maryland treasury. Agnew ultimately gave the Maryland State Treasurer a check in the amount of $268,482 – the amount he allegedly took in bribes – in 1983.

 

Now, on to the Constitutional discussion:

 

Let’s say, just for the sake of argument, that Vice President Spiro Agnew had refused the plea bargain offered him by the DOJ in 1973. He would have almost certainly been impeached and removed from office (there is no ambiguity here – “bribery” is specifically listed in the Constitution as cause for impeachment, and the Justice Department had a solid case). How would that have worked?

 

First, the House of Representatives would have passed “Articles of Impeachment” against Agnew, sending the impeachment to the Senate for trial. According to Article I, Section 3, the Senate would hold the trial with all Senators under oath or affirmation. Since it wouldn’t have been the President who was being impeached (in which case the Chief Justice of the Supreme Court would preside over the Senate trial), the presiding officer for the trial would have been the regular President of the Senate, which, according to Article I, Section 3 of the Constitution, is…

 

…wait for it…

 

the Vice President!

 

So, unless I’m way off base here, it would seem that under the Constitution, the Vice President would – or at least could – preside over his own impeachment trial.   How could the Founding Fathers have made that possible? I think I have the answer.

 

The Constitutional Convention was held in Philadelphia from mid-May to mid-September of 1787. Future President James Madison attended every session and took verbatim notes, which he arranged to have published only after every delegate to the convention had died (the last one to die, it turned out, was Madison himself, in 1844). Over that summer of 1787, according to Madison’s notes, several possible successors to the Presidency had been discussed, including the Chief Justice, the Speaker of the House, and the President’s cabinet acting as a committee, but none were satisfactory to enough of the delegates. Meanwhile, the delegates were having difficulty reaching agreement on how the President would be elected. They had devised an early version of the “electoral college” system, but there were concerns that the electors would only vote for their home-state favorites, leading to domination by large states and deadlocked elections. To resolve both the succession and election issues, the idea of a Vice President was introduced – but, according to Madison’s notes, it was not introduced until the first week of September. The delegates had been working on the Constitution during a very hot and humid Philadelphia summer since mid-May, and the finished Constitution was signed by the delegates on September 17th. The delegates were anxious to leave and get back to their families, and knowing they were close to finishing, they were in a bit of a hurry to get it done. The Vice Presidency was the last significant addition to the Constitution. It was clearly an afterthought, and it shows in the final document.

 

To demonstrate how much of an afterthought the Vice Presidency really was, just read the Constitution. The President, Senators, Representatives, and federal Judges are all constitutionally guaranteed “a compensation for their services” – in other words, they get paid – but there is no such provision in the Constitution for the Vice President! The first Congress recognized this oversight, and passed legislation giving the Vice President a salary from the Legislative Branch’s budget, since the Vice President serves as President of the Senate. To this day, the Vice President draws his salary from the Legislative Branch – not from the Executive Branch.

 

Another indication that the Vice Presidency was an afterthought at the Constitutional Convention is that the Constitution provides specific means for filling vacancies in the offices of President, Senators, Representatives, and federal Judges, but not for the Vice Presidency! This oversight wasn’t corrected until 1967, when the 25th Amendment to the Constitution was ratified (primarily in response to the health issues of President Eisenhower and the assassination of President Kennedy in the context of the Cold War and other urgent national concerns). In fact, from March 4, 1789 (the inauguration of George Washington as the first President of the United States) to March 4, 1989 (exactly 200 years later), the United States was without a Vice President for about 20% of the time. When a President died and the Vice President became President, or the Vice President died or resigned, the Vice Presidency would simply remain vacant until the next inauguration.

 

I think the same thing happened with the subject of this discussion. The delegates could have solved this rather easily; instead of the provision in Article I, Section 3 reading “When the President of the United States is tried, the Chief Justice shall preside”, it could have (and probably should have) read “When the President or Vice President of the United States is tried, the Chief Justice shall preside”. The addition of three words (…“or Vice President”…) would have solved the issue of the Vice President presiding over his own impeachment trial, but they didn’t think it through – although the delegates did remember to include the Vice President in the list of officials who can be impeached (found in Article II, Section 4).

 

Getting back to Vice President Agnew, if he had refused to resign, he could have insisted on presiding over his own impeachment trial, but pragmatically this probably would have been disastrous for him. Don’t forget – it is the Senators who vote on the question of whether to remove the Vice President from office, and many Senators would be resentful of a Vice President who demonstrated such incredible arrogance as to insist on presiding over his own impeachment trial. Most likely, Agnew (or any future Vice President that might face impeachment) would have stepped aside and the President Pro Tempore of the Senate (traditionally the longest-serving Senator from the majority party; for Agnew this would have been Democratic Senator James Eastland of Mississippi) would have presided over the Senate trial.

 

So…

 

Under the Constitution of the United States of America, would the Vice President preside over his/her own impeachment trial in the Senate?  The answer would seem to be that, Constitutionally at least, the Vice President could indeed preside over his or her own impeachment trial, but realistically, doing so would be ill-advised, since it would offend the Senators so much that at least two-thirds of the Senate would be likely to vote to find the Vice President guilty of an impeachable offense, thereby removing him or her from office.

 

 

 

© 2016 by David Bleidistel.  All rights reserved.