Demetri Posted June 12, 2019 Share Posted June 12, 2019 31 minutes ago, Ser Scot A Ellison said: I appreciate your thorough review of this issue. I appreciate where you are coming from. However, you are ignoring a huge part of issues, Politics. Politically, does it make sense for any Presidential Candidate to nominate someone for the office of Vice-President who’s opening moments create a Constitutional crisis as to whether or not they can actually hold the office of Vice-President under the 12th Amendment? What does such a nomination say about that person’s qualifications for the office of President? You might be right legally. That said, I’d be very surprised to see any candidate open this can of worms, politically. For sure. I didn't even intend to address that part of it but was speaking more philosophically. It is a lossing situation for everyone. But taking it into the real world....it could be a super clever strategy. Obama can be VP on the ticket and that ticket can win and then and only then does Congress assess his eligibility. If found ineligible then they'd pick someone as a replacement. Meaning that Obama could (this is the land of hypothetical nonsense, just musings) be a very powerful political force in the election, encourage Dems in Congress to find him ineligible and not fight it at all and essentially walk away from a result he helped manufacture. I also don't really think it would be a constitutional crisis but could inspire changes to our central legal document (constitution). It might not even have to lead to written changes as any discourse on it would be a matter of first impression and thus would be the first, and reigning, precedent. I didn't mean to make it sound possible or likely or a good idea, I was simply saying that I really do think it is possible and I really do think that if push came to shove they'd allow it. But it is totally defensible to either disagree or view it from a different angle. For instance, my old Constitutional Law professor said that it sounded like I knew more about it than he did simply because there is no doctrinal rosetta's stone for this, partly because the cited law was formed piecemeal and very much as an ad hoc remedy to very specific things (the craziness of turn of the 19th century politics and FDR) at very different times. Most scholars think it would hold up, but several very notable folks disagree with us. I just thought it was a really cool thing to delve into given how many Constitutional and historical elements it drags with it. Link to comment Share on other sites More sharing options...
Demetri Posted June 12, 2019 Share Posted June 12, 2019 2 minutes ago, DMC said: Agreed, I just don't think it's politically palatable so the legal question is kinda moot. I dunno if I like the latter half of that sentence. Having options in politics is almost always an advantage. Plus, laws are inherently written (even if just I infrastructural kind of documents) to address either the completely pedestrian procedural stuff or the very rare situation. I should also mention that something being possible is the obvious prerequisite to existence. So being legally available doesn't affect that quality of the idea as a political plan, sure. But being legally possible definitionally means it isn't moot because it means it remains viable but simply an unused option. I'm quibbling a bit over the definition of moot here, I grant you. But the definition of moot that reflects what I take you to mean suggests a lack of practical importance, akin to this dictionary entry "having little or no practical relevance, typically because the subject is too uncertain to allow a decision." So when a point is irrelevant and thus moot, that isn't because of the likelihood of it becoming an issue, it is because the issue itself is too attenuated to produce an answer. I think I made a pretty good argument that, 1) if it happened an answer absolutely would happen and thus cease being moot by being decided. Even Congress doing nothing would be an affirmation.2) There is a whole lot suggesting that the answer would be a simple one. The politicians do make it moot, but that doesn't affect the legal question anymore than murder is moot because you're not a murderer. Not to belabor the point, but this is the opposite of a moot point IMO. Likelihood of it happening is a fine critique, but this issue has been discussed for a long while and there is a lot of disagreement. In short: it isn't moot, it is simply unlikely to be tested under certain circumstances. But keep in mind that recent politics has brought this issue up twice in the last 15ish years with two of our last 4 presidents being mentioned: Clinton and Obama. We also live in a present political landscape where the name Bush and Clinton and Kennedy (I could go on) represent institutional products in a way even the Roosevelt cousins didn't. Interestingly, both the 12th and 22nd amendments have direct connections to history heavily involving political families (Adams and Roosevelt, respectively.) That is more a fun tidbit than a true causal relationship. But it is beyond refute that the same groups of folks are either spending time in or contending for the White House in a way unusual enough as to be meaningful. That's why I don't think it's moot. Changing political tides could bring forth a really great set of circumstances for this maneuver. Trying this requires a previous position of power as a necessary condition and modern politics means that that shouldn't be a problem. But totally agree that it is politically not palpable, at least not unless you want to think many moves further down the board. Link to comment Share on other sites More sharing options...
Mexal Posted June 12, 2019 Share Posted June 12, 2019 Link to comment Share on other sites More sharing options...
Larry of the Lawn Posted June 13, 2019 Share Posted June 13, 2019 40 minutes ago, Mexal said: Give him enough rope Re: Obama VP. Remember also that whatever legal opinion would be rendered, it'd be by this court or a more conservative one. Link to comment Share on other sites More sharing options...
Jace, Extat Posted June 13, 2019 Share Posted June 13, 2019 6 minutes ago, larrytheimp said: Give him enough rope... ... and he'll coil it around himself like a christmas tree? Link to comment Share on other sites More sharing options...
Larry of the Lawn Posted June 13, 2019 Share Posted June 13, 2019 21 minutes ago, Jace, Basilissa said: ... and he'll coil it around himself like a christmas tree? Was hoping he'd impose a rope tariff but you do you Eta : your Christmas parties sound like way more fun than any I've been to Link to comment Share on other sites More sharing options...
Jace, Extat Posted June 13, 2019 Share Posted June 13, 2019 4 minutes ago, larrytheimp said: Was hoping he'd impose a rope tariff but you do you Eta : your Christmas parties sound like way more fun than any I've been to You've never had a Rope Wrapping party? You're missing out, man. Link to comment Share on other sites More sharing options...
Zorral Posted June 13, 2019 Share Posted June 13, 2019 He just told the Russians to bring him the dirt again. And hack to their hearts' content. In the meantime the trolls are using word salad and preposterous flattery of vanity to get toeholds within the so-called Dem operatives. Why yes, even in this place, o my gawsh! Shakes head and walks away into the gloom and blood of the end of days. Link to comment Share on other sites More sharing options...
Jace, Extat Posted June 13, 2019 Share Posted June 13, 2019 He literally, LITERALLY, stood on a stage and begged Wikileaks and Russia to interfere in 2016. The fact that you people can be surprised continues to surprise me. Link to comment Share on other sites More sharing options...
Fragile Bird Posted June 13, 2019 Share Posted June 13, 2019 OMG, Norway is gonna call with dirt on his opponents, folks, Norway. Time to bomb Norway, guys! Link to comment Share on other sites More sharing options...
Demetri Posted June 13, 2019 Share Posted June 13, 2019 1 hour ago, larrytheimp said: Re: Obama VP. Remember also that whatever legal opinion would be rendered, it'd be by this court or a more conservative one. The Constitution inherently addresses the remedy and designates a legislative course. " If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified." This raises an additional point of Constitutional interest because it is obviously light on details. Putting it under Congressional purview makes sense in many ways. First, Congress is the primary expression of popular opinion. In dealing with issues regarding who will occupy a prominent federal position, they would essentially be acting to recreate a similar popular mandate. Second, what alternatives remain? They could delegate the power, but to whom? The historical alternative would be the executive branch. That doesn't work for obvious reasons. Third, Congress is ideally situated to create a solution with such vague and unhelpful guidelines. Congress would be making a law (as stated explicitly in the excerpt but it also fits logically). The Court wouldn't get involved in this anyway. They COULD perhaps inspect if any power delegated by law properly observes separation of powers doctrine. But it wouldn't get there. Congress has to actually form a plan and make a decision before the Court can properly assess the validity of their law and, for this issue, the reasoning behind the law (which is extremely important in separation of powers land.) The court doesn't want any part of this anyway, I believe. Nor will they have to as this is clearly legitimate legislative power, occurring in ordinarily legislative manners (no limiting it to Senate, for instance), and intended to have an impact towards a legislative goal. Any court that tries to challenge that as sufficient basis for Congress acting autonomously here will be rewriting some of the most fundamental principles and seminal cases in Constitutional jurisprudence. Link to comment Share on other sites More sharing options...
DMC Posted June 13, 2019 Author Share Posted June 13, 2019 4 hours ago, Demetri said: In short: it isn't moot, it is simply unlikely to be tested under certain circumstances. Ok, however you wanna describe it, not interested in having a semantic debate. My point is it's very, incredibly even, unlikely to actually happen. And that's because of the political difficulties of selling it to the public, the media, the party (either party), fellow elected officials, and, yes, even the courts. ETA: Plus in the specific case of Obama, I am confident he would never accept the offer even if a nominee tried to get him to do it. Link to comment Share on other sites More sharing options...
Larry of the Lawn Posted June 13, 2019 Share Posted June 13, 2019 @Demetri Huh, didn't know that. Not sure it really matters though if we have the House and Senate run by different parties, but definitely wasn't even aware of that. Re: stuff about the far left driving people to Trump. This is the same old shit that has been trotted out with Blue Lives Matter, All Lives Matter, Social Justice Warrior as a pejorative, equating ANTIFA with Nazis as if they are the same shit (I realize that's not what you were doing in your post), and even what @Kalbear was saying about people moving towards those who are'nt yelling at them. It's the same as the straw-feminists that want to castrate men myth. Just wanted to reiterate that I 100% do not agree with you, or Kal, on this. Also it doesn't help that we have nothing specific to go on re: what are we actually talking about. Someone called you a racist or a sexist (and I am genuinely not interested in the actual scenario, or making a judgment on it) and it bothered you, and now you are concerned that the "far left" (whoever that is) is driving people to vote for Trump because.... of unfairly calling people out? Or maybe even fairly calling people out? I mean, why would you vote AGAINST what you actually believe in just to spite some random asshole? My thesis is that anyone who would do that doesn't actually give a fuck to begin with. Link to comment Share on other sites More sharing options...
Demetri Posted June 13, 2019 Share Posted June 13, 2019 6 minutes ago, DMC said: Ok, however you wanna describe it, not interested in having a semantic debate. My point is it's very, incredibly even, unlikely to actually happen. And that's because of the political difficulties of selling it to the public, the media, the party (either party), fellow elected officials, and, yes, even the courts. ETA: Plus in the specific case of Obama, I am confident he would never accept the offer even if a nominee tried to get him to do it. Sure. I agree with all of that completely. Obama was simply a place holder name as he would never, in a million years, agree. But Clinton? Well, that is at last within the realm of belief to me. In previously discussing this issue and similar issues, he specifically cited changes in health care (and also in what careers look like) as legitimately causing some questions about how well the 22nd amendment has held up post FDR. He specifically mentioned that the idea of non-consecutive terms has a lot of pragmatically interesting things. But he and Reagan have both stated a desire to reform the 22nd. That's two of our last four two term presidents who very pointedly suggested that the 22nd amendment deserves some inspection. I'm with you on the difficulties. But when past presidents mention it prominently then it cannot be said that it is an unfathomable concept. In my defense on the semantics, moot, as a legal term, basically obligated me to pick nits on this. But that entire vein of conversation was a festival o'nit picking. I think the legal ability for something to exist, in and of itself, has value beyond simply showing how you get to that change. It gives it legitimacy in the court of public opinion and starts to bridge the mental gap which you rightly characterize as underlying most of the practical issues. Link to comment Share on other sites More sharing options...
DMC Posted June 13, 2019 Author Share Posted June 13, 2019 Just now, Demetri said: But Clinton? Well, that is at last within the realm of belief to me. Oh sure, I think Clinton definitely would have considered it - especially when he was quite popular post-presidency from about 15 to 3 years ago. Now though? Can't see anybody in the Democratic Party offering it to him, he's pretty toxic since the metoo movement. Curious to see how much he's asked to even campaign for the nominee - wouldn't be surprised if he's not at all. Link to comment Share on other sites More sharing options...
Demetri Posted June 13, 2019 Share Posted June 13, 2019 12 minutes ago, larrytheimp said: @Demetri Huh, didn't know that. Not sure it really matters though if we have the House and Senate run by different parties, but definitely wasn't even aware of that. As a final point, the lack of specifying a particular house constitutionally means that both houses must contribute otherwise it is not legitimate legislative process. The court COULD come in here to confirm their decision as an analog of executive confirmation. I don't think it is necessary or would be the likely result in this hypo, but that's all I can really think of regarding SCOTUS. It would also probably be more rubber stamp than substantive statements or actual law being evinced and fleshed. Because this would be a high-leverage issue and thus highly scrutinized, and because proper legislative procedure is necessary here, I think Congress would aggregate in the process of law creation, then divide and vote separately to prevent superficial complaints. Hell, in this fantasy world we might get Congress doing some of its all time best work here. Because while this isn't precisely a minefield, it is certainly a garden path surrounded by minefields. But only Congress can do it. It'd be damn hilarious to watch them realize that they wouldn't be able to do business as usual on this one. Link to comment Share on other sites More sharing options...
Demetri Posted June 13, 2019 Share Posted June 13, 2019 1 minute ago, DMC said: Oh sure, I think Clinton definitely would have considered it - especially when he was quite popular post-presidency from about 15 to 3 years ago. Now though? Can't see anybody in the Democratic Party offering it to him, he's pretty toxic since the metoo movement. Curious to see how much he's asked to even campaign for the nominee - wouldn't be surprised if he's not at all. Poor Obama needed to be airlifted to a spa ASAP after leaving the White House. He didn't like it and it was obvious. Many of the great leaders have been unwilling recipients of the yoke of power. I wouldn't necessarily cast him as the norm, was my larger point. The fact that Reagan and Clinton agree on Constitutional repeal/reform is definitely a hell of a statement regarding the place such issues have in the Overton Window of politics. Clinton's time has passed, but you can definitely tell he still loves it, relishes it. That is the more usual outlook of a politician than Obama (who I always imagined using a dull piece of metal to mark off each day served in some sad concrete wall beyond the White House kitchen.) The really interesting thing to me when assessing the political attractiveness of this is how potentially appealing it can be to so many different sorts of political affiliations or interests. A conservative might say that the Framers made it clear that the most important attribute of a President is being the best man for the job, not years served. A liberal might say that we need to modernize two areas of law created specifically because of long past issues with specific politicians or regimes. Someone might say "That is shit writing for the girding document of our country." A textualist might say that the careful, circumspect and considerate construction of the Constitution means that the words and lack thereof have tremendous value and inconsistent terminology is not a clerical issue but a purposefully created opening. A pure realist might say that democracy being limited by an arbitrary numerical figure rather than popular mandate is no democracy at all. Any multitude of arguments have validity. Will it happen? Who knows? Unlikely events =/= impossible events. Is there reason to think that public opinion of such limitations could/will change? Absolutely. It already has several times. First, upon creation. Second, with Washington's one term. Third, when VP were not elected discretely. Again with FDR. And Fifth and finally with two politically opposed two term presidents advocating for repeal or reform. Can I track this change and predict what it looks like after X years? Of course not. But I'm not even certain we need to limit assessments of likelihood to greater political acceptability/approval. Like many other issues that seem integral, and thus irremovable, to the political process, a specific set of facts and a specific scenario is what leads to a need for action or clarification. We've skirted awfully close to that with family presidential dynasties. I can totally buy that ain future unknown situation in a future where our election system continues to lose appeal and substantive 22nd analysis occurs rather than merely factual recording (Should it say this vs. What does it say) that this could occur in reality. We know it can occur in theory because the Constitution tells us what the general rule of law will be guiding how they legislate on the issue. I think it's a cool thought exercise because you get a ton of American history, consider longitudinal changes to political culture, get to analyze our central legal document and, always the best, get to speculate rampantly about things that only political nerds would ever even think about once. Link to comment Share on other sites More sharing options...
DMC Posted June 13, 2019 Author Share Posted June 13, 2019 23 minutes ago, Demetri said: The fact that Reagan and Clinton agree on Constitutional repeal/reform is definitely a hell of a statement regarding the place such issues have in the Overton Window of politics. I don't know how much those statements qualify as moving the Overton window closer to repeal or reform. From what I'm aware of both were more just musings and neither made any type of actual advocacy on the issue. I'd be surprised if even a full 1% of Americans are even aware either made such comments. 23 minutes ago, Demetri said: First, upon creation. Second, with Washington's one term. Third, when VP were not elected discretely. Again with FDR. And Fifth and finally with two politically opposed two term presidents advocating for repeal or reform. Can I track this change and predict what it looks like after X years? Of course not. I think since FDR and the passage of the 22nd, public opinion has long since hardened that the president only gets two terms, and would therefore view any such VP nomination as a violation of that. That would be very, very difficult to overcome, and I just don't see any self-interested nominee thinking it's worth the effort. Why bother? Unless it's some type of Putin/Medvedev arrangement, in which case we have a lot more problems than the legal debate. 14 hours ago, Ser Scot A Ellison said: Taft was Chief Justice after serving as President, so, it’s not unheard of for a President to move to the SCOTUS. Just to add to this because I'm bored, there is a long history of politicians being nominated (and serving) to SCOTUS. Earl Warren was Governor of California and the 1948 GOP VP nominee. Salmon Chase was Governor, Senator, then Secretary of Treasury immediately before being nominated CJ by Lincoln. There are plenty of other examples of justices having primarily political careers (either as an elected official or an appointed bureaucrat) before being nominated, even recently. Rehnquist worked in Nixon's Justice Department before being nominated by him. Sandra Day O'Connor was the first woman to serve as a state's majority leader (in Arizona) before serving as a state judge (an elected position). It's only since the last 30 years or so that most of the the nominees - and even candidates to be nominated - are generally identified through their circuit court experience. Link to comment Share on other sites More sharing options...
Altherion Posted June 13, 2019 Share Posted June 13, 2019 42 minutes ago, Demetri said: Is there reason to think that public opinion of such limitations could/will change? Absolutely. It already has several times. First, upon creation. Second, with Washington's one term. Third, when VP were not elected discretely. Again with FDR. And Fifth and finally with two politically opposed two term presidents advocating for repeal or reform. Can I track this change and predict what it looks like after X years? Of course not. Of course, anything political can change, but this particular term limit has been there as a tradition since the very beginning and it has seen very little challenge. Washington would almost certainly have won a third term, but he decided to step aside and since then, it had very nearly the force of law. A few Presidents tried to argue that it meant non-consecutive terms, but all of them lost and when F.D.R. finally broke the tradition, it was promptly made into a full-fledged amendment to prevent anybody from doing so again even though F.D.R.'s circumstances were completely unique. It's a pretty well established convention. Link to comment Share on other sites More sharing options...
Rorshach Posted June 13, 2019 Share Posted June 13, 2019 4 hours ago, Fragile Bird said: OMG, Norway is gonna call with dirt on his opponents, folks, Norway. Time to bomb Norway, guys! Hey, we have our very important local elections coming up this fall! No time to call Trump until ... October, I think. Link to comment Share on other sites More sharing options...
Recommended Posts
Archived
This topic is now archived and is closed to further replies.