Jump to content
Sign in to follow this  
DMC

US Politics: Reaching the Tipping Point

Recommended Posts

16 hours ago, The Anti-Targ said:

Here, in this thread? I imagine it would get almost universal praise, when in the context of voting for Trump.

My own view is that anything announced here would have limited readership. I tried launching my bacon & bun Thames tour on here and all I got was the VAT man. 

Share this post


Link to post
Share on other sites
5 hours ago, Tywin et al. said:

Sounds about what I’d expect, though I’m skeptical that this can be accurately measured outside of small group samples.

Don't think I follow, what exactly can't be measured outside of small groups?  Selective exposure?  If that's the case I strongly disagree, there have a number of excellent studies that employ large samples.  Although it is true that much of the research on selective exposure is conducted via experiments with much smaller samples (like this one).

48 minutes ago, Tywin et al. said:

Having an excessive amount of candidates with no chance only crowds out their individual messages, ones we need to hear so we can pick the best candidate to beat Trump.

While I agree that's the top tier, I think there's still ample opportunity for someone in at least the second tier to break out.  If you look at institutional support like endorsements or consideration among activists, Booker, Klobuchar, Beto, Castro, and Gillibrand all have comparable support to much of the top tier (actually taking both those lists together Beto looks like he's in the most trouble).  With a strong debate performance I could see any one of those jumping up to the top tier.  And, as @Fez mentioned, it's still possible that someone random comes out of nowhere like Buttigieg did.  Honestly, I'm fine with the field not getting culled til after the third debate, which will be mid-September.  We can have a good ol' summer clusterfuck!

Share this post


Link to post
Share on other sites
2 hours ago, Demetri said:

No offense but this is not accurate. Definitely not in the definitive tone you use to state the answer with simplicity. But I also think it is probably not  the right answer either way (in my opinion, and it is very much a split opinion in legal scholarship, you're totally entitled to yours of course). I also think it misses the big picture a bit in its reasoning. I find it likely that Obama would be upheld as vice president if it happened with the decision reasoning focusing on legislative intent, a shift in terminology and issues of practicality. After all, the wording I'll outline is crucial.

<snipped for length>


I don't think someone can make a great argument as to why 12 connects to Article II via same wording but not to 22nd outside of legislative intent. As a result, I think it would be permissible. But the answer is absolutely not an unqualified no. It is a fun little issue though.

Thank-you for that detailed answer! 

I’d love to see Biden try that...

Share this post


Link to post
Share on other sites
2 hours ago, Demetri said:

No offense but this is not accurate. Definitely not in the definitive tone you use to state the answer with simplicity. But I also think it is probably not  the right answer either way (in my opinion, and it is very much a split opinion in legal scholarship, you're totally entitled to yours of course). I also think it misses the big picture a bit in its reasoning. I find it likely that Obama would be upheld as vice president if it happened with the decision reasoning focusing on legislative intent, a shift in terminology and issues of practicality. After all, the wording I'll outline is crucial. 

The 12th says no one "ineligible" to the office of president can be vice president. The specific bit of the 22nd you reference is but one of the requirements for an eligible president. But the 22nd changes terms and when that happens a strong presumption is made that the legislature did so purposefully to distinguish it from issues such as these where it would be easy to erroneously lump two different doctrines into one. That presumption is a fundamental cornerstone for Constitutional Law, and thus the wording here becomes of even more importance than it would for any other legal document.

Instead of "ineligible", the 22nd states, and note the difference, "
" No person shall be elected to the office of the President more than twice...". But the broader and more famous stipulations regarding age, residency extend beyond the 22nd and appear in Article II, Section 1: 5: "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, 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." 

It is extremely noteworthy that "eligible" was used in 12 but not in 22 and both were preceded by explicitly named requirements to be "eligible." This constructively states a different standard and also provides a strong argument that legislative intent was to link 12 to Article II, not to theFD 22nd amendment. It might sound silly, but huge cases are decided on that very same logic (inconsistent terms purposefully indicating how certain things connect legally). Furthermore, the legislature has exercised tremendous discretion regarding elections and those elected. 

To suggest that reading the 12th and the 22nd together makes the issue absolutely sorted is absolutely incorrect. But your conclusion might well not be. I think a holistic view of intent and consideration of historical factors (1796, 1800 elections and others prompted a complete change in how VP is elected and FDR's existence led to the 22nd amendment, which basically codified what was already the norm.) In trying to connect those two (which is already too limited) there would need to be a good explanation as to why Congress worded 1 amendment to directly link to pre-existing Constitutional material and yet would not extend that same word to another, as that word acts to unify and shed light on intent. 

But beyond all that, it is clear that being elected isn't a requirement to serve as president. It certainly limits the ability to run for president, but does not affect eligibility of that office. The 12th points directly to the Article II requirements for "eligibility" to help highlight this. The intent was very clearly to avoid a situation where an 8 year old is serving as VP. It simply says that the general standards for eligibility apply to the vice president because that person is basically the back-up president and it makes no sense to not consider their age or citizenship if we codify rules for the president.

It is still undecided in legal circles. I think that it would be fine (consider the remedy the government would have here if Obama was put on the ballot and they somehow decided it was unconstitutional. )That adds a nice policy consideration flourish to this because it would necessarily have to involve Congress  overriding popular opinion on an issue that, is itself, a manifestation of popular opinion. Here is how it would work (note that it only is available after election): (From Amendment 20): "... 3: If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. 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." That will simply never happen in the real world. So ambiguity here is not as evenly distributed as you'd think because saying "Nah, it's barred" means that Congress would actually try to do the above remedy. It is also a fun connection back to the elections that led to reforming VP election. It would be a complete fool's errand.

I don't think someone can make a great argument as to why 12 connects to Article II via same wording but not to 22nd outside of legislative intent. As a result, I think it would be permissible. But the answer is absolutely not an unqualified no. It is a fun little issue though.

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.  

Share this post


Link to post
Share on other sites
35 minutes ago, Ser Scot A Ellison said:

That said, I’d be very surprised to see any candidate open this can of worms, politically.

Agreed, I just don't think it's politically palatable so the legal question is kinda moot.

Share this post


Link to post
Share on other sites
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.

Share this post


Link to post
Share on other sites
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.

Share this post


Link to post
Share on other sites
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.

Share this post


Link to post
Share on other sites
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

Edited by larrytheimp

Share this post


Link to post
Share on other sites
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.

Share this post


Link to post
Share on other sites

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.

Share this post


Link to post
Share on other sites
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.

Share this post


Link to post
Share on other sites
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.

Edited by DMC

Share this post


Link to post
Share on other sites

@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.  

Edited by larrytheimp

Share this post


Link to post
Share on other sites
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. 

Share this post


Link to post
Share on other sites
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.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
Sign in to follow this  

×