If there&#39;s no majority candidate, does the incumbent or newly elected Congress choose the President and Vice President? If no candidates get a majority in the U.S. electoral college, are the President and Vice President chosen by the incumbent Congress or the ones just elected?
The newly elected Congress does all of the work in electing a new President. Under the 20th Amendment, the newly elected Congress takes office on January 3. Then three days later, on January 6, 3 USC § 15: Counting electoral votes in Congress, requires the new Congress to meet in Joint Session to count the electoral votes. If this session does not produce a President or Vice President, there is what is called a contingent election. In a contingent election the House begins immediately to choose a President from among the top three electoral college vote getters, while the Senate chooses a Vice President from among the top two electoral college vote getters. Both Houses use majority rule. The House votes by state, so a majority is 26, while the Senators vote individually, so a majority is 51. If the House does not pick a President by Inauguration Day, January 20th, the Vice President serves until a President is picked. If neither a President nor a VP has been picked by the 20th, the Presidential Succession Act applies, and the Speaker of the House, President pro tempore or a cabinet officer serves as Acting President. It wasn't always done this way: The 20th Amendment was passed in 1933 to take control over elections away from the lame duck Congress. Before the 20th A was adopted, the terms for P, VP and Congress all ended on Inauguration day, March 4. That meant the lame duck Congress had to deal with electoral matters. By giving Congress and the P/VP different expiration dates, the Amendment meant new Congress could deal with the election. Setting the election counting date after the new Congress was seated (on January 6), meant only the new Congress could.
There is no definitive answer, which can only be determined by SCOTUS if faced with a case. DOJ has opined twice that "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions". The Impeachment Clause (art.I, §3, cl.7) says Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indict­ment, Trial, Judgment and Punishment, according to Law The exegesis of this clause is that this means a sitting president cannot first be prosecuted for a crime, but must first be removed from office. The counter-argument is that "nevertheless" indicates that this clause only states that a president can be removed and then prosecuted, and that removal does not preclude further action. In other words, the law has yet to be determined on this matter.
Yes. US Constitution, at Article two, Section two, provides that the President has the power to nominate the justices and appointments are made with the advice and consent of the Senate. There is nothing restricting the President from doing this on any particular day from beginning to end of his term, and also no restriction on when the Senate may give their advice and consent.
Not less than a full house of Congress, and perhaps Congress as a whole, might have standing. It is hard to see anyone else who would. The law of Congressional standing (the link is to a report of the Congressional Research Service, a policy research arm of the Library of Congress that does research for Congress) is quite involved and is not perfectly consistent and clear. Congress would argue that it has suffered an institutional injury as an institution and perhaps authorize someone to bring suit on its behalf via a joint resolution. As the Court explained in Arizona State Legislature, an “institutional injury” is an injury that “scarcely zeroe[s] in on any individual member,” but rather “impact[s] all Members of Congress and both Houses . . . equally.” There is considerable uncertainty regarding how this would be applied which is not really at issue in this case at the present time since Democrats control both houses of Congress and support the President in this policy. Individuals legislators lack standing to sue in a case like this one. See also Tara Leigh Grove &amp; Neal Devins, &quot;Congress’s (Limited) Power to Represent Itself in Court&quot;, 99 Cornell L. Rev. 571 (2014); Matthew L. Hall, &quot;Standing of Intervenor-Defendants in Public Law Litigation&quot;, 80 Fordham L. Rev. 1539 (2012). A blog entry from a law professor considers the question and comes up with the Congressional standing analysis above, the notion that a loan serving company paid on the dollar value of the loans serviced might have standing (which isn't inconceivable but is a stretch), and finally considers &quot;competitor standing&quot;, a minority view that I do not think is sound in these circumstances (because the forgiveness is retroactive only and does not change competitive positions going forward).
Article II of the Constitution does say that "The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors". So it is true that a president or a federal judge could be impeached and removed from office, and it has happened to some extent 19 times – in 8 cases it went all the way to removal (as opposed to acquittal or resignation). However, this would not be a very effective way to avert a "crisis". Any judicial ruling is subject to appeal by a higher court, until you get to the Supreme Court. Moreover, impeaching a lower judge does not erase his or her rulings. So ultimately, a matter will be decided by SCOTUS. In anticipation of such a ruling, Congress might decide to get rid of some Supreme Court justice who they think might stand in the way. That was attempted with Samuel Chase, who was acquitted. Such a decision is not subject to judicial review (Nixon v. United States 506 U.S. 224). However, SCOTUS can also overturn that decision though that would be very unusual. It would also be very unusual for Congress to impeach a Supreme Court justice for having a position that they disagree with. At any rate, there is no such thing as a "deadlock" between branches of government. When the court rules, that is the end of the matter from a legal perspective. It is, in fact, entirely possible that a general will rule that the court or the president (or both) are wrong and will declare what the law now is, but that takes us out of the realm of legal discussions.
Not all by itself. It requires the consent of the legislature of the existing state, as well as of the US Congress. But if they all agree, then yes, it is possible. US Constitution, Article IV, Section 3: New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress. You might like to read about how West Virginia was created out of Virginia in 1863. Of course the State of Virginia had already seceded, and the Confederate legislature obviously didn't consent, but the federal government recognized a separate "Restored" government of Virginia which did consent.
The electors being &quot;appointed&quot; simply means that they are chosen for that office. They may be chosen by election, they may be chosen directly by a state legislature, some other mechanism might be used. The Constitution leaves that entirely to the states. 3 U.S. Code § 1 says: The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President. When it says &quot;every election of a President and Vice President&quot; it means the vote of the electors. Thus it says that the electors are formally appointed four years after the previous set has done so. 3 USC § 7 goes on to say: The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct. So they are appointed in November, and then vote in December. 3 USC Chapter 1 does not refer to &quot;election day&quot; in any sense meaning a popular election Note that these code sections dates from 1948. The Federalist #68 says, in relevant part: It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture. ... A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. ... Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice. All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office. (emphasis added) The above makes it clear that popular election was expected to be used to choose the electors, although it was not used by all states at first, and was not invariable until after 1860.
The Constitution states the only possible restrictions on presidential power, thus a president can exercise the powers of the office except if dies, is impeached, or the 25th Amendment becomes relevant. If the VP decides to can can get a majority of the relevant principal officers to agree, POTUS can be deemed unable to discharge his duties. Congress has not designated any body other than the executive departments for satisfying that requirement. After the disability is communicated to the President Pro Tempore of the Senate and the Speaker of the House, the Vice President immediately assumes the powers of the president. However, the declaration of disability is revoked when the president informs the Senate Pro Tempore of the Senate and the Speaker of the House in writing that no inability exists, and he resumes his powers. Then, if within 4 days the VP and a majority of the cabinet again vote that the President is incapacitated and communicate that decision as above, then POTUS does not resume his powers. If and when this comes up, there will be some discussion about the timing of the re-vote. The amendment says, specifically Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Assuming that the inability is not instantly re-certified, then there are at least two ways to interpret this. One is that the president temporarily re-assumes power until 4 days pass or the disability is re-affirmed. The other is that the president must wait 4 days before re-assuming power (and the VP remains in power). Then SCOTUS will have to decide what the amendment &quot;means&quot;. Assuming that the inability is re-certified within 4 days, then by a vote of 2/3 of both houses of Congress, Congress decides if POTUS is disabled. Specifically: If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. In this case, the language of the amendment makes it clear that the VP becomes acting president. The unclarity is limited to whether, between declarations of disability, actions of POTUS are legal.