Can the Vice President vote themselves into positions of power? With the retirement of Stephen Breyer from the Supreme Court, and Biden's promise to nominate a Black woman to fill the vacancy, some of the most far-fetched speculation about the nominee has involved Kamala Harris. The Senate is currently evenly split with Kamala Harris's vote breaking the tie. If, in this hypothetical, Biden actually nominated her, and the Senate was tied when voting to confirm her, would she be able to cast the tie-breaking vote to put herself on the bench? Does a judicial nominee's power to do this not infringe upon the separation of powers? Or, if it does not, how is the Senate providing ‘advice and consent’ when a judicial nominee is ultimately the one who gives their consent when the Senate can't agree without the VP? A similar question arises when there's an Electoral College tie, and the Senate is tied, which would allow the incumbent VP to vote themselves back into power if they're standing for re-election. Does the Constitution permit such a flagrant power grab?
The US Constitution Art. 1 §3 cl. 4 says The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. No clause of the Constitution limits how a person can vote in the Senate (or the House). Congress has not enacted any legislation that addresses this question, and nothing in the Constitution empowers Congress to limit the right to vote. Art 1 §5 cl. 2 says Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. That is, the Senate can set up rules for how it will conduct business. The Senate is not empowered to exclude a member's right to vote, they with a supermajority they can expel a member (or convict and remove a vice-president, given an impeachment from the House). It should also be remembered that the VP is not a member of the Senate, the VP has a limited right to vote which is granted by the Constitution, and which cannot be taken away except by constitutional amendment. Harris would therefore be empowered to vote for herself, under the tie-breaker clause.
Yes the Senate could adopt a secret ballot rule, but other constitutional provisions combined with high partisanship make it practically impossible that the final results will be done through secret ballot. As other answers have mentioned, Article 1, Section 3, provides for the Senate to have sole power of trying impeachments. Similarly by Article 1, Section 5, each House may adopt its own rules. That means that yes the Senate can create its own rules that say the conviction vote will be done by secret ballot. However, adopting these rules only achieves a pyrrhic secret ballot. The very same section that provides for each house to make its own rules (Article 1, Section 5) also states: ...and the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those present, be entered on the Journal. This means that if any vote is taken including this secret ballot vote, after doing so any member can ask for the Yeas and Nays of all members to be put into the Journal. The journal is the official record of each House. Thus while the vote was first taken in secret at least any member of the Senate will have access to the subsequent recorded vote, provided at least 1/5 of the Senate wishes to have a recorded vote. While not all is lost, the Senate could declare that this record itself is to remain secret, all 100 Senators and most likely many of their staff members will know how each Senator voted. Additionally, the Speech and Debate Clause states that: for any Speech or Debate in either House, they shall not be questioned in any other Place. Thus if a Senator were to publicly read the vote results into the record of a public committee hearing or during a filibuster or for really any other procedure (as rules of germane debate are very very lax in the Senate, but that is an issue for another question) that information could easily become public record. So while yes the rules can be changed to use secret ballot, a fifth (20 Senators currently) could ask for the Yeas and Nays to be entered on the Journal and this defeats the purpose of the secret ballot. So the only reasonable way to keep a secret ballot as the final dispositive record of a vote is to convince more than 4/5ths of the Senators to not ask for a recorded vote. In this sense it is certainly allowed and possible for the Senate to vote by secret ballot.
Advisory opinions violate the separation-of-powers doctrine. The "case or controversy" clause helps enforce this separation. The judicial branch is responsible for resolving legal disputes by interpreting and applying existing law. In doing so, it may incidentally modify or extend the law. Courts are only supposed to do this to the extent necessary to resolve disputes. Outside a legal dispute, the legislative branch is solely responsible for making changes to the law. If courts were allowed to issue advisory opinions, they would be effectively be altering the law without addressing an actual dispute. As such, advisory opinions violate the separation-of-powers doctrine. The "case or controversy" requirement exists to ensure that the judicial branch does not usurp the powers of the legislative branch. Relevant quote from page 45 (PDF page 10) of Separation of Powers: An Old Doctrine Triggers a New Crisis: [...] one of the major arguments [...] against advisory opinions is that they violate the separation of powers doctrine. Judicial power, it is said, should be limited to deciding litigated cases. When justices issue opinions on contentions that have not yet been the subject of legal dispute, these justices approach the status of lawmakers.
No. The relevant provision of the United States Constitution is Article II, Section 2, Clause 1 which states in the pertinent part: The President . . . shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. The correct conclusion flows pretty directly from the definition of a "reprieve" and a "pardon", both of which, in the ordinary senses of these words refer to granting forgiveness for acts that have already occurred. One of the leading cases on point which supports this view is Ex parte Garland, 59 U.S. (18 How.) 307, 380 (1855), which states: The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. Despite its antiquity, this case remains good law and has been applied repeatedly in subsequent cases (although few on the right of a President to pardon future crimes which just hasn't come up). Other Observations The President's pardon power is limited to federal crimes, so no President may pardon or commute a state or foreign conviction. The nature of the pardon power, if any, with respect to state and local crimes is governed by each respective state constitution and varies rather considerably. The power in the U.S. Constitution is broader than that is some state constitutions. For example, the corresponding provision of the Colorado Constitution, applicable to convictions entered by the state of Colorado, does not allow crimes to be pardoned prior to a conviction. Article IV, Section 7, of the Colorado Constitution provides: "The governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason * * *." The History Of The Pardon Power One of the most thorough and up to date reviews of the scope and nature of the federal pardon power can be found in the law review article, Todd David Peterson, "Congressional Power Over Pardon and Amnesty: Legislative Authority In The Shadow of Presidential Prerogative" 38 Wake Forest L. Rev. 1225 (2003). In particular, it has an interesting historical overview of the power at pages 1228-1235 (pagination and footnotes omitted): The President's pardon power derives from the authority that had been invested in English kings since the end of the first millennium. Although the King possessed plenary power to grant pardons, over the years Parliament imposed specific limitations on the pardon power in order to avoid perceived abuses. For example, the Habeas Corpus Act of 1679 made it an offense for any person to imprison an English subject outside of the country and, in order to avoid an evasion of the writ, Parliament prohibited the King from granting a pardon for violation of the statute. Nevertheless, English courts frequently took an absolutist view of the King's pardon power. Thus, in Godden v. Hales, the Lord Chief Justice upheld a royal pardon on the ground that the Kings of England were absolute sovereigns; . . . the laws were the King's laws; . . . the King had a power to dispense with any of the laws of Government as he saw necessity for it; . . . he was sole judge of that necessity; that no act of Parliament could take away that power. The Parliament, however, persisted in its efforts to rein in the pardon power and, in 1700, adopted the Act of Settlement, which stated that "no pardon under the great seal of England [shall] be pleadable to an impeachment by the commons in Parliament." This limitation was enforced against the King, although it did not apply to pardons granted to relieve punishments imposed after the impeachment of an official. The royal pardon prerogative was imported into the American colonies whose charters gave the leaders substantial authority to pardon offenses. At the Constitutional Convention of 1787, neither the Virginia plan nor the New Jersey plan contained a pardon power. Nevertheless, at the insistence of Charles Pinckney, Alexander Hamilton, and John Rutledge, a pardon clause similar to the English Act of Settlement of 1700 was added to the draft constitution. Thus, the first report of the Committee on Detail proposed that the clause read: "He [the President] shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment." The issue of legislative control over the pardon process was addressed directly by an amendment proposed by Roger Sherman of Connecticut. James Madison's journal notes that "Mr. Sherman moved to amend the power to grant reprieves and pardon' so as to readto grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate.'" George Mason argued that the Senate already possessed too much authority, and the proposed amendment was rejected by a vote of eight to one. The convention did approve a motion to insert "except in cases of impeachment" after pardon and remove the words "but his pardon shall not be pleadable in bar." Luther Martin then sought to limit the President's power to grant pre-conviction pardons by inserting the words "after conviction," following the words "reprieves and pardons." Martin, however, withdrew his motion after James Wilson argued that "pardon before conviction might be necessary, in order to obtain the testimony of accomplices." Edmund Randolph then offered an amendment to exclude "cases of treason" from the pardoning power. This proposed amendment was defeated, although its exclusion was later to prove controversial. Thus, although the framers realized that the pardon power was subject to potential abuse by the President, they declined to place any limitations on the President's pardon power or grant the legislature any authority to check potential presidential abuses. The debates following the convention's passage of the Constitution reveal more about the framers' views on the pardon power. In the Federalist 74, Alexander Hamilton attempted to respond to the criticism that the President could pardon his accomplices in a case of treason. Hamilton acknowledged that "there are strong reasons to be assigned for requiring in this particular the concurrence of [the legislative] body or of a part of it." Hamilton argued, however, that the reasons against such legislative authority outweighed any in its favor: "[i]t is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever." In particular, Hamilton argued, in the case of large scale seditions that attracted significant popular support, we might expect to see the representation of the people tainted with the same spirit, which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. Thus, Hamilton argued not only that the power was properly reposed in the President, but that it would be dangerous to grant such power to Congress. Finally, Hamilton argued that it was appropriate to grant the President pardon power in order to ensure that the authority could be exercised with appropriate dispatch: "In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the Legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed that a discretionary power with a view to such contingencies might be occasionally conferred upon the President; it may be answered in the first place, that it is questionable whether, in a limited constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic before-hand to take any step which might hold out the prospect of impunity." There was little debate about the pardoning power during the state ratifying conventions. George Mason continued to argue that the power should not be given to the President. An opponent in New York suggested that pardons for treason should not be allowed without congressional consent. Ultimately, the Constitution was adopted without any express limitation on the President's pardoning power. The Supreme Court has on a number of occasions discussed the general scope of the pardoning power. For the most part, with exceptions to be discussed later, these decisions contain broad dicta concerning the unfettered nature of the President's power and the inability of Congress to impose any legislative restrictions on it. For example, in United States v. Wilson, the Court held that a pardon must be pleaded in order to be effective. Chief Justice Marshall wrote that the [C]onstitution gives to the [P]resident, in general terms, "the power to grant reprieves and pardons for offences against the United States." As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. Marshall further defined the pardon as an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. In Ex parte Wells, the Supreme Court considered whether the President could grant a conditional pardon in the form of commutation of a death sentence to a sentence of life imprisonment. The Court noted that pursuant to the Pardon Clause, the President has granted reprieves and pardons since the commencement of the present government. Sundry provisions have been enacted, regulating its exercise for the army and navy, in virtue of the constitutional power of [C]ongress to make rules and regulations for the government of the army and navy. No statute has ever been passed regulating it in cases of conviction by the civil authorities. In such cases, the President has acted exclusively under the power as it is expressed in the [C]onstitution. The Court noted, however, that "[t]here are also pardons grantable as of common right, without any exercise of the king's discretion; as where a statute creating an offence, or enacting penalties for its future punishment, holds out a promise of immunity to accomplices to aid in the conviction of their associates. When accomplices do so voluntarily, they have a right absolutely to a pardon . . . ." Thus, at least in dicta, the Court recognized Congress's authority to regulate clemency in the military and to adopt statutes granting immunity for cooperation in a criminal investigation. In Ex parte Garland, the Court spoke in sweeping dicta about the exclusive power of the President over pardon and amnesty. In Garland, the Court considered the issue whether a former Confederate senator would be permitted to be a member of the Supreme Court Bar without taking the statutorily required oath that he had never voluntarily given aid or comfort to the confederacy. The petitioner had received a presidential pardon and argued that the pardon exempted him from the requirements of the oath to which he could not truthfully subscribe. The Court held that it was "not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency," and therefore, the petitioner was entitled to membership in the Bar. In the course of the opinion, the Court broadly defined the President's pardon power: "The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." In Ex parte Grossman, the Court considered whether the President's pardon power extended to criminal contempts of court. The Court upheld the President's power to issue such pardons based on the history of royal pardons for contempt in England. The Court also looked to the long history of presidential pardons of criminal contempts of court. In responding to the argument that a presidential pardon of contempt of court would interfere with the ability of the federal courts to protect their own decrees, Chief Justice Taft noted that the Constitution provides a number of powers to the branches which give them the ability to check the other branches of government. With respect to the pardon power, the Court stated: "[t]he executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress." The Court also noted that the President exercised the pardon power without any significant judicial check on his pardoning authority: "It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it. An abuse in pardoning contempts would certainly embarrass courts, but it is questionable how much more it would lessen their effectiveness than a wholesale pardon of other offenses. If we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?" In Biddle v. Perovich, Justice Holmes wrote an opinion for the Court in which he upheld the President's conditional pardon of a convict sentenced to death on the condition that his sentence be commuted to life imprisonment. Justice Holmes suggested a different rationale for the pardon power than Chief Justice Marshall had enunciated early in the 19th century. Rather than being a private act of grace that must be accepted and proffered to the court by the one pardoned, Justice Holmes saw the President's pardon as serving public policy ends: "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. . . . Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done."
If President Trump refuses to execute the war, does that become an act of treason on his part? Probably not, but it depends on the definition of treason. Congress could decide that it is, impeach him, and remove him from office. They could also remove him from office without using the term treason. Is he required to act on such a resolution? Not really. As chief executive, he has discretion to prioritize the tasks assigned to him by congress. Furthermore, there is plenty of precedent in international affairs for countries being legally in a state of war without any actual combat or other hostilities. If he doesn't, is there any recourse other than impeachment to force US armed forces to attack RF interests at home and abroad? There's always political pressure. But there's no way to relieve the president of his command of the armed forces without relieving him of his office. Aside from impeachment by the congress, this can be temporarily achieved by the cabinet, as specified in the 25th amendment. POTUS is the commander-in-chief, but, at the same time, he is not allowed to unilaterally decide who may or may not cross the border into the United States. The president's ability to make immigration policy and the fact that such policy is subject to judicial review are unrelated to his powers as commander in chief. Immigration is a civil and criminal matter, not a military one. The president's powers in this regard are delegated to him by congress, not specified in the constitution. On the other hand, the president's role as commander in chief of the military is explicit in the constitution. Do the judges also have a power to compel armed forces to take actions which a sitting President is refusing to take? The judiciary does not have the power to order military operations.
No As the official Rules Of The Senate say in section VI (Quorum): A quorum shall consist of a majority of the Senators duly chosen and sworn. No Senator shall absent himself from the service of the Senate without leave. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order. Thus there must be a majority of the US Senate, that is at least 51 Senators, present to do any business, and in particular to pass any bill or resolution. The scenario described in the question, where less than a majority can control the action of the Senate, thus cannot occur. MY understanding is that when any Senator rises to question whether a quorum is present, in addition to the reading of the names on the Senate floor, lights flash indicating a quorum call in the office of each Senator, and if the Senator is present and did not expect a business session, that Senator would be likely to get to the floor, and if the senator is not in the office but even one staff member is, that staffer would be very likely to call the Senator wherever s/he might be. Moreover, section VII of the Rules provides that: Until the morning business shall have been concluded, and so announced from the Chair, or until one hour after the Senate convenes at the beginning of a new legislative day, no motion to proceed to the consideration of any bill, resolution, report of a committee, or other subject upon the Calendar shall be entertained by the Presiding Officer, unless by unanimous consent: Provided, however, That on Mondays which are the beginning of a legislative day the Calendar shall be called under rule VIII, and until two hours after the Senate convenes no motion shall be entertained to proceed to the consideration of any bill, resolution, or other subject upon the Calendar except the motion to continue the consideration of a bill, resolution, or other subject against objection as provided in rule VIII, or until the call of the Calendar has been completed. This ensures that the Senate cannot simply take up a bill the moment it convenes. Moreover, there is a public Legislative Calander. This calendar: Displays time and date the Senate is next scheduled to convene The CRS report &quot;The Senate’s Calendar of Business&quot; says in relevant part: The Senate’s Calendar of Business lists bills, resolutions, and other items of legislative business that are eligible for floor consideration. When a Senate committee reports a bill, it is said to be placed “on the calendar.” It is not in order for the majority leader or any other Senator to move that the Senate proceed to the consideration of a measure that is not on the calendar, though the majority leader could ask unanimous consent to do so. ... The Senate’s other calendar, the Executive Calendar, lists treaties and nominations—which constitute the Senate’s executive business—that are available for floor action. Both of these documents are published each day the Senate is in session and distributed to Senators’ personal offices and to all committee and subcommittee offices. ... The front cover of the Calendar of Business gives the dates on which each session of the current Congress convened and adjourned sine die and the number of days the Senate actually has met during each session. It also shows the date and time at which the Senate is next scheduled to convene. ... Also included in the Calendar of Business are the following: calendars for the current month and year, showing the days on which the Senate met and the anticipated dates of future nonlegislative periods; ... &quot;bills and joint resolutions read the first time” and awaiting the start of the next legislative day when they will be read by title for a second time; after this second reading, each such measure probably will be placed directly on the calendar under the provisions of Rule XIV instead of being referred to committee. Note that this means that no bill can be acted on on the same day that it is introduced, and every Senator's office is notified of bills that had a first reading. Thus no bills can be snuck in and acted on without every Senator having notice that the bill is coming up. Also, as I understand it, a Senate meeting cannot be scheduled without notice of the date having been given in the Calendar, or else to every Senator's office. So the sort of &quot;private Calendar&quot; and &quot;private meeting&quot; suggested in the question would not work, unless the rules are first changed.
They can't overturn the decision; but they don't have to. The holding in Dobbs was that the US Constitution does not provide a right to an abortion, and so a state law prohibiting abortions is not unconstitutional. Congress can't &quot;overturn&quot; it in the sense that they can't make the Constitution provide such a right, short of a constitutional amendment. But that in itself doesn't stop them from providing such a right in other ways, e.g. through ordinary legislation. Under the Supremacy Clause, such a law would supersede any state bans; provided that it falls within the scope of Congress's enumerated powers, which assertion would itself probably be challenged in court. If it's within their legislative power, then there's no conflict with Dobbs. To give a more mundane example, nobody thinks that there is a constitutional right to have an airline ticket refunded within 24 hours of purchase. If the Supreme Court ever had occasion to rule on the question, they would surely hold that nothing in the US Constitution says that people have this right. But Congress does have the power, under the Commerce Clause, to pass legislation that confers such a right on consumers. They have done so, and this law would not in any way conflict with the aforementioned hypothetical Supreme Court ruling.
With the president, no. In the case where the election results cannot be certified, a safe harbor provision (3 U.S. Sec. 5) allows, if not requires, the state to appoint the electors by alternate means. Under most conceivable circumstances, the process ends here. However, if the House of Representatives refuses to accept the validity of those electors, and the president-elect still has a majority of the Electoral College, the state will simply have no say in the president's election. If rejecting those electors leaves no candidate with a majority of the Electoral College, the House of Representatives itself will elect the president per the process in Art. II of the constitution, as amended by Amend. 12. If the president-elect makes it past all these considerations to the oath of office, the only removal mechanism is impeachment. With other state and federal offices, each state, as well as the federal government, has its own laws regarding disputed elections. But one remedy would have to be a new election.