The Boy Who Refused to Go Home
What Happens If/When The President Refuses to Leave Office
On November 3, 2020, the chances are dubious that the American public will definitively learn the identity of the next President of the United States. Already, seeds of doubt are being sowed by Donald Trump, with accusations ranging from voter fraud to foreign interference in the election to doubts about his opponent’s physical and mental health. Come election night, if Biden wins, but the results are even slightly close, the President will almost certainly call for a recount or otherwise seek to challenge the results. Worse — if the results clearly point to Biden, there is growing concern that Donald Trump will refuse to leave the office.
What Happens If The President Refuses to Leave Office?
Peaceful transfer of power is one of the hallmarks of American democracy. Over the course of 232 years, the presidency has passed from person to person and party to party without much fanfare. Indeed, the U.S. Constitution provides the framework for this transition. Three specific sections of the Constitution address this: Article II, the 20th Amendment and the 22 Amendment.
Article II, Section 1 states that the President “shall hold his Office during the Term of four Years.” Under Section 1 of the 20th Amendment, “[t]he terms of the President and Vice President shall end at noon on the 20th day of January.” Presidential terms are capped to 8 maximum years pursuant to the 22 Amendment, which states that “no person shall be elected to the office of president more than twice.”
Applying a purely textual analysis of the Constitutional framework to the problem of a president refusing to leave office after the results of an election, the controversy is not so difficult to explain: at 12:01 on January 20, the powers vested into the individual who was the president for the preceding 4 years automatically expires. Gone with it are any and all executive powers, privileges and immunities the person enjoyed as the president and this person can and should be forcibly removed by the secret service. Any directive coming from this individual would hold no authority. Power would pass according to the lines of succession described in Article II, Section 1, Clause 6 — and because the Vice President’s power also expires at the same time as the President, the most likely individual succeeding to the Presidency would be the Speaker of the House of Representatives.
The larger, looming issue is what happens between November 2, 2020 and January 20, 2021. Herein lies the way for a president to lose the election, and still retain the presidency.
Bush v. Gore 2, the Remix
In 2000, the U.S. presidential election between George W. Bush and Al Gore came down to a mere 9000 contested ballots from Miami-Dade County, Florida. Initially, the Florida Supreme Court ordered a manual recount of the votes, but the matter was appealed and brought before the U.S. Supreme Court in Bush v. Gore. Oral argument in the case was held on December 11, 2000. This date will become important, as the case hinged critically on certain timelines.
The Supreme Court found Florida’s recount procedure was unconstitutional — and, even given a constitutionally valid recount procedure, the Court held that Florida was not required to complete a recount because the recount could not be accomplished in a constitutionally valid within the time limit set by federal law. The date in this case would have been December 12, 2000.
In the United States, electors meet and cast their votes to decide the next president and vice president. This is set forth explicitly in the Constitution in Article II, Section 1, Clause 2 and Clause 3. (“Each State shall appoint…a Number of Electors…The Electors shall meet…and vote by Ballot for two Persons…The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the Certificates and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President.”)
The electors have a specific deadline in which to meet and cast their votes. Article II, Section 1, Clause 4 mandates that Congress determine the date on which the electors cast their votes. This deadline is determined according to 3 USC 7, which instructs the electors to “meet and give their votes on the first Monday after the second Wednesday in December.”
In 2000, that deadline was December 12. In 2020, the deadline is December 14.
President Donald Trump, upon losing the election on November 3, 2020, still holds all his authority until noon on January 20, 2021. He could, conceivably, exercise some form of executive power to challenge the election, perhaps citing foreign interference and calling for a full investigation — and the challenge only needs to last just over a month. Because if the election results remain unresolved by December 14, 2020, the electors are mandated to cast their votes at that time. And if there are not enough electors present to cast the votes necessary to give either candidate enough to win (perhaps because certain republican-controlled state congresses refuse to send electors by the prescribed deadline) the vote would then be thrown into the House of Representatives, where the vote is then done by state delegation. The Republican Party holds a narrow advantage of states with a majority of Republican representatives at 26 to the Democrats’ 23 (Pennsylvania is split).
Democratic Recourse — But At What Cost
Even under an extreme scenario described above, the Democrats would not be without recourse. They could attempt to mount their own constitutional challenges in an effort to sway or stack a vote in the House of Representatives to their favor. But at what cost?
When presented with a thought experiment like this, it’s easy to look at it simply from the short term of who wins/who loses. Lost in the mix of all this political drama are each of us who, whether we realize it or not, are being stretched thin between sides and ideologies and who are being left without any real or meaningful recourse or change in our day-to-day lives.
We all lose in this situation. We’re not mindful that we are currently facing problems that will take not a simple Presidential term to solve, but terms of many Presidents, before we begin to see real change. The next presidential election is not going to solve major issues like wealth inequality, police brutality, systemic racism, the lack of affordable healthcare, or the growing number of environmental crises.
This election has us on a crash course of events that could stretch our Constitution to its breaking point. If that happens, will “we the people” seek to establish some new, better union?
