Hello Volokh Conspiracy readers! I’d like to thank Eugene for this opportunity to guest blog here about my new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.
Today I’ll have one post with a brief introduction, and another with an excerpt/discussion from one chapter. I’ll discuss a couple more chapters tomorrow and Thursday, and conclude with some general lessons on Friday. I look forward to your comments, and I’ll try to post some responses to them too.
My book is about what I call constitutional cliffhangers, all of them of the presidential variety. I define these cliffhangers as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.” They range from the merely interesting all the way up to full-blown constitutional crises.
In the middle six chapters, I sketch out hypothetical situations in which (1) a president is criminally prosecuted; (2) a president pardons himself; (3) cabinet members try to oust an allegedly disabled president, who in turn tries to oust them; (4) the secretary of state and the Speaker of the House fight for control of the presidency after the president and vice president are killed; (5) an ex-president is impeached; and (6) a two-term president attempts to stay in power.
In each case there are legal arguments on both sides, complicated by intense politics. The politics are often decisive in cases like these, so it might seem pointless to spend too much time debating the legal niceties. I’ll address that important issue on Friday.
In the remainder of this introductory post, I’ll address a common question that topics like mine evoke: “Why worry about a bunch of crazy stuff that will never happen?”
The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.
It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late. Consider this passage from my introductory chapter about the lessons we can learn from our most contentious presidential election:
The whole election turned on a few hundred disputed votes in Florida. There had been ultra-close presidential elections before, and there had been ambiguous results in individual states before; it was only a matter of time before both happened at the same time. Unfortunately, no steps had been taken to prevent it.
The problem was that there were no rules for resolving a dispute like this. The quintessential American mixture of politics and litigation filled the void. The Republicans fought to defend their initial lead; the Democrats fought to open things back up and recount the votes. The Republicans controlled key posts in the state government; the Democrats won key victories in Florida state court. The Republicans took their case to Washington, D.C., where Republican-appointed Supreme Court justices declared that there was no time for recounts, handing the election to the Republicans. And so, in 1877, Rutherford B. Hayes became our nineteenth president.
You might recall some similar things that happened in 2000. The underlying quandary — an electoral system in which it is easy for the margin of error to greatly exceed the margin of victory — was no secret before 1876, let alone in 2000. And yet it dangled out there unsolved, waiting to snag both elections. For the most part, it dangles still.
That’s the spirit of Constitutional Cliffhangers.
I’ll be posting again later today with a look at my favorite cliffhanger (Chapter 4 in the book), a succession crisis in which the secretary of state and the Speaker of the House wrestle, figuratively, for control of the White House.
Assistant Village Idiot says:
It depends a bit on what you mean by “margin for error.” Interpreted broadly, there was of course room for swings of thousands of votes depending on challenges. Interpreted to mean margin for error in the examination and counting of ballots, the amount was small, as evidenced by the narrow range in the later hand recounts using different criteria for chads. Still, even that small margin seems to have been right on the borderland of possibility, as the later hand recounts were mostly, but not unanimously, for Bush.
I mention this because I see the two items as very different. Ballot count, once a standard is set, should no longer be a politic matter, but a technical one. Politics tries to nose its way in, but having witnesses all ’round should keep that under control. The broader issues of margin of error – of which ballots to count because of how they were handled and stored, how special ballots were completed, how ballots were designed, etc – are unavoidably political. Worse, they often require discussion and deliberation but we don’t have time for that. (I kept thinking that we should have some carve-out to give us time, but was eventually convinced that such accommodations would be even more partisan than the situation in hand. Frying pan. Fire.)
January 24, 2012, 9:38 amAdam says:
Maybe the solution to Chapter 4 is to have the SecState and the Speaker wrestle literally for control of the White House. No holds barred, he (or she) who emerges wins the presidency.
January 24, 2012, 9:54 amPublius The Lesser says:
I think states that use a winner-take-all system should change the way they award electoral college votes so that the electoral college votes are split evenly among the candidates who score within 0.5% of the largest share of the popular vote in that state. Hence, if one candidate beats all of the others by more than 0.5%, they are the winner, but if other candidates finish within 0.5% of the winner, they are tied for first place and split the electoral college votes.
Actually, this would just shift arguments to whether a given set of candidates finished within 0.5% of each other, so it’s likely to cause more problems than it solves.
January 24, 2012, 9:54 amAdam says:
I took Prof. Kalt’s remark to be one about statistics. If the voting is treated no differently than a media poll, there is a statistical margin of error (ye olde sqrt((p(1-p))/n)).
January 24, 2012, 9:57 ambyomtov says:
If we’re not just going to use the poular vote, surely it makes sense to divide a state’s electoral votes in proportion to the outcome in the state.
That eliminates the stupidity of a small number of swing states deciding the election. Also, it limits the damage from error. If a state has ten electoral votes the dispute over whether it was 54.99 to 45.01 or 55.01 to 44.99 will lead to a fight over just one electoral vote, not all ten.
January 24, 2012, 10:20 amReg Dunlop says:
My prediction for chapter 4 would be Madame Secretary besting the Speaker via a springing piledriver off the turnbuckle.
January 24, 2012, 10:52 amAnother guy named Dan says:
I think the better crisis would be the result of an event which incapacitated the president, vice-president, speaker, and senate parliamentarian: All of Washington simultaneously trying to remember who the Senate president pro-tem is.
January 24, 2012, 11:05 amAnderson says:
This looks like it could be the Best Guest-Post Series ever. Thanks!
January 24, 2012, 11:13 amarch1 says:
1) Which election – 1876 or 2000 (or some other one:-) – do you consider our most contentious?
2) I’m curious what you consider a “fix.” I’m guessing that most citizens would say that, other things equal, they hugely prefer a) “no cliffhanger” to b) “side with best lawyers wins,” with c) “side with best politicians wins” a not-too-distant third. But I also can’t see the average citizen sacrificing significant “other things” up front in order to better align with this preference ordering. Maybe your Friday posting will touch on these things.
January 24, 2012, 11:15 amMark S. Devenow says:
Of the six scenarios addressed, clearly none of them is nearly as plausible as a potential electoral deadlock following a close election where, as Professor Kalt puts it, the margin for error inescapably built into the electoral system exceeds the actual margin in an election outcome.
Indeed the other five scenarios, while not implausible, exist at a far cry from anything which might be envisioned without a perfervid imagination.
Specifically, scenario 1 is all but inconceivable within a constitutional schema where Article II officers are subordinate to the elected President, US v. Nixon withal. Thus, while it is not theoretically impossible that a state might also choose to prosecute a sitting President for violations of state criminal law, there is probably a better chance of a President being hit by a meteorite on any given day than there is of this occurring. Scenario 2 being a derivative/subordinate contingency following scenario 1 admits of virtually no possibility whatever.
Scenario 3 might occur in reality, but legal issues posited would seem to be foreclosed of the mere fact that cabinet members serve at the President’s pleasure and there can be no serious question as to the right of a sitting President, putatively ‘disabled’, vel non,to fire members of his cabinet for any reason or no reason.
Scenarios 4 and 6 present/posit theoretical possibilities (I confess to having no idea as to what Professor Kalt means in Scenario 5), but seem as a practical matter, to be precluded by the country’s political traditions.
So in the last analysis, where it comes to authentically plausible scenarios, we get back to electoral politics and various infirmities in constitutional design which might actually result in – or require – wading into the mess, the diaphanous legal matter, cobbled inter law and politics.
January 24, 2012, 11:27 amAssistant Village Idiot says:
Whoa, Adam, I would hope the margin for error on an election would be hugely less than that for a poll. Poll error measures the amount that the sample does represent the whole. In an election, there is no longer a mere sample, but the entire set of likely voters, with “likely” now an absolute rather than estimated measurement.
We’re already off topic, and perhaps that’s my fault. Let me make it worse by saying I liked Adam’s other suggestion. Think how much fun that check-off box would be on your taxes: “I designate $3 to go for constructing a well-camera’d stadium with wrestling ring for politicians to duke it out in case of constitutional crisis.”
January 24, 2012, 11:33 amCalderon says:
arch1 said:
To chime in with my views, I’d submit 1800. It did not take as long as in 1876 or 2000 to decide a winner, but the bitterness on both sides combined with the fact that the US was still a young country and could have collapsed added to the contentiousness and importance of the election.
January 24, 2012, 11:48 amTrivianus says:
This sounds like an interesting hook for a series. I’m looking forward to it.
January 24, 2012, 12:14 pmplutosdad says:
There is one state (MN?) that says if after 2 recounts the difference is still within 1% of the total votes, then flip a coin.
I think from a truth and statistics standpoint this is the best, because as long as the difference is within the margin of error, there is no way to know who actually got more votes. However would people stand for that? I think it would be great, but then I have a math degree. most people probably don’t even understand it.
(which is why people are wrong when they say Gore got the popular vote, we can’t know that, it’s simply not possible, because his margin was so small.) similarly it’s why more recounts won’t work no matter how many witnesses there are.
January 24, 2012, 12:31 pmJim Copland says:
I’d actually think scenario 1 is pretty plausible, from a state DA or AG of an opposing party. No one probably thought it likely that you’d have a civil suit against a sitting president before Jones v. Clinton, either.
Scenario 3 is hardly far-fetched, either. Consider W.H. Harrison, whom Brian mentioned — or Woodrow Wilson, whose wife extra-constitutionally assumed many of the presidential duties after he was effectively disabled.
And scenario 6 isn’t that far-fetched, either, if the president could posit a “crisis.” It’s happened regularly in foreign countries (not to mention, e.g., in the last NYC mayoral election, with no crisis in play at all).
I do think that scenario 4 is less likely — the doomsday-ish version Brian’s painting (deliciously) being a rare and very unlikely exception.
January 24, 2012, 12:42 pmProf. Brian Kalt, guest-blogging says:
arch1: I consider 1876 our most contentious. A fix in this context would be better electoral technology, which would reduce the number of uncertain votes. But even in Canadian general elections, where you vote by putting an X next to the name of your preferred candidate, you still get some undervotes. The idea is to reduce; nothing can eliminate it.
Mark S. Devenow: While I am quite proud of my “perfervid imagination,” I think that it is not required here. You say that a criminal prosecution of a sitting president is all but inconceivable. I would just point to the Nixon, Bush 41, and Clinton administrations. All three presidents were pursued by special prosecutors. Clinton essentially ran out the clock, cutting a deal a day before any immunity he had would have expired. As for state prosecutions, while it is unlikely, I think it is much more likely than you seem to conclude. In the book, the state prosecution arises out of an alleged rape. I think that the Strauss-Kahn case showed how that might happen.
I have, for each chapter, some suggestions on how they might happen, what special factors would make them more or less likely, and so on, so I won’t go through them all here. But as a general matter, we should distinguish between how likely it is that a constitutional issue will happen, and how likely it is that it will matter. In that sense, Chapter 1 has already “come up” several times, because multiple prosecutors have had to confront the issue.
One other thing: The close-election scenario doesn’t quite qualify as a constitutional cliffhanger under my definition, but I would like to chime in with my opinion on the matter. Basically, I analogize it to football. When they spot the ball, there’s a significant margin of error there–inches, maybe even a foot sometimes. But when they pull out the chains to see if you got a first down, they get it down to a fraction of an inch. That’s arbitrary at some level, but the question of whether you got a first down is a binary one, and it is crucial to declare a quick, definitive result. So in 2000, Bush got a good spot, and after that there’s not much more we can say about it.
January 24, 2012, 1:03 pmProf. Brian Kalt, guest-blogging says:
Jim: I agree that 4 is less likely, but it makes up for that fact by having much higher stakes. I also teach Torts, and this is the Learned Hand Test and work in my head.
January 24, 2012, 1:30 pmCharlie Eldred says:
plutosdad, this will just move the controversy from whether X got one vote more than Y to whether X got one vote more than 1% more than Y.
January 24, 2012, 1:52 pmrfhirsch says:
The 1876 election, only decided in fact in 1877, would seem to be the true cliffhanger. It was only settled days before Hayes took the oath of office (secretly) on Saturday, March 3, 1877, and then publicly on Inauguration Day, March 5, 1877. If a compromise had not been negotiated between the Republicans and Democrats, no candidate would have been cretified by Congress to take office on the date specified in the Constitution.
January 24, 2012, 2:04 pmSoronel Haetir says:
Importing polling math into elections is more than a bit misleading. With polling you are trying to get the sense of an entire population without asking everyone in that population. With elections you have already asked everyone who isn’t disqualified for some reason and cares enough to participate.
Even statistics models where you ask “what would the result be if we ran the election X times” is not really right, because again, you only get one actual run and it is what it is. Now, I agree that you can do lots to minimize the measurement uncertainty in that one shot, but that is quite a different thing from either polling or multiple trials. With some election forms you can of course get more accurate results even after the fact by more careful examination of the evidence (usually the margin is large enough that it just isn’t worth using that much care), other ways of conducting elections negate even that possibility.
As for extremely close presidential elections, we already have a constitutionally prescribed mechanism for dealing with the circumstance. I’m sure it would not be popular if it were actually used, but I’m guessing that no means of settling an election that close would be.
And I would say that the electoral college, even in its wildly lopsided modern form, is a good thing because it requires a winning candidate to draw support from across the country.
January 24, 2012, 2:10 pmSykes Five says:
They are referring to the national popular vote.
January 24, 2012, 2:32 pmSykes Five says:
How so? We can easily imagine a Republican president who does not carry any Northeastern or West Coast states, or a Democratic president who does not carry any Southern or Mountain West States.
January 24, 2012, 2:39 pmPeter Gerdes says:
I was going to buy it but Yikes, that’s a steep kindle price!
January 24, 2012, 2:50 pmProf. Brian Kalt, guest-blogging says:
Peter, I agree that the price is too high. Academic publishing is a tricky business. Mass market appeal is tough to gauge, and I’m sure that I’m not the only author who thinks that the publisher underestimated it in his own case. I’m equally sure that most of us are probably wrong. All I can say is that despite the high price, it’s still worth every penny :)
January 24, 2012, 3:02 pmAnthony Dye says:
The book looks fascinating, but the $33 kindle price is too steep for me. :(
If it comes down in price, I’d love a copy!
January 24, 2012, 4:34 pmll says:
Re the election one.
It seems to me the question is not what to do about the cliffhanger, but rather why the Supreme Court butted in to something that was a-political and b-easily handled by the Constitution as amended, at least as of 2000.
Yeah, the Florida Supreme Court screwed with the state election laws, but that is a STATE separation of powers issue.
Conceivably Florida could had sent 3 slates of electors 1-the initial set certified by Bush and Harris, 2-the set resulting from the courts in the contest phase, 3-a set selected by the legislature because of #2.
Congress get three sets and House and Senate agree on a set or don’t. If they do, the winner is set. If they don’t, the House voting by state selects the president.
Why is this such a mystery?
January 25, 2012, 12:11 amMark S. Devenow says:
Professor Brian Kalt: I was unaware that President Bush 41 was the object of any criminal investigation which might have led to the prosecution of a sitting President. I may have missed this. Can you fill in the referent for me?
Where it comes to Presidents Nixon and Clinton it is fairly clear that their respective criminal exposures were more or less direct functions of the appointment of special prosecutors. Inasmuch as statutory authority does not presently exist to support or facilitate appointment of an independent (viz. non Article II) special prosecutor, it seems to me unlikely that the scenario of a sitting President being subject to prosecution is anything near at hand or plausibly envisionable. Equally clear, the experience the country has had with Presidents of both parties being under the gun of a special prosecutor – a functionary untethered to Executive branch discipline – is not such as to augur for the re-enactment of a statute by which the mechanism would be re-established.
Finally, positing of a sitting President being prosecuted by state or local authorities in a Dominick Strauss-Kahn like situation, seems to attenuate in an era where presidents are surrounded by cadres of Secret Service agents. Of course, I could be missing something.
January 25, 2012, 7:59 amProf. Brian Kalt, guest-blogging says:
Bush 41 was enmeshed in Iran-Contra. Independent Counsel Lawrence Walsh was pursuing him. When at the end of his presidency he pardoned all of the others (though not himself, despite some speculation that he might) Walsh was pursuing, Walsh ended the investigation.
In the Nixon era, there was no Independent Counsel statute either. As now, they could be and were appointed ad hoc.
As for your last paragraph, your argument would seem inconsistent with the Lewinsky case.
January 25, 2012, 8:12 amAssistant Village Idiot says:
Sykes Five, I don’t disagree with either of those points, but do have some interesting things to add. We actually do not know the national popular vote total, because states stop counting absentee ballots if the lead for one candidate is greater than the total remaining. So, California had enough of a lead for Gore that they didn’t count absentees further, because what would be the point? But as, even in California, Republicans tend to get more of those, a full count would have increased Bush’s total more than Gore’s. It was not, as I recall, expected that it would have been enough to pass Gore anyway. Not close. However, one can at least imagine a scenario in which the national vote flipped on a full recount. It’s an irrelevant number anyway, except as one side or the other can make political hay out of it. (I don’t think SH was referring to this, BTW)
As to regional support – yes, and it has always been this way in presidential elections. It’s just that “regions,” historically, are not quite as we expect. Of the four base British settlement regions from colonial times, presidential candidates have always been exceptionally strong in one and decently strong in another, often enough to carry the day if they are flat-out hated in the third or fourth. For a detailed discussion of this, election by election, David Hackett Fischer’s Albion’s Seed is enormously entertaining.
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[...] my first post we pronounced that my “cliffhangers” operation from a merely engaging all a approach adult to [...]
January 29, 2012, 4:53 pm