How would originalists vs living-constitutionalists assess the constitutionality of electing a female President of the United States? This question regards the USA and its federal constitution. Article II, Section I of the US Federal Constitution says that: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years The US Federal Constitution always refer to the &quot;President of the United States of America&quot; as a &quot;he&quot;. One may think that the image of the President of the USA that the framers had in mind was male. This argument was also presented by Erwin Chemerinsky at TEDx, as you can see in this video, at 4:10. Here are my questions: If we use the &quot;originalism/textualism&quot; method of interpretation, is it unconstitutional to elect a female President of the United States of America? How does the answer to (1) changes if we use the &quot;living constitutionalism&quot; method of interpretation?
There is no such restriction. At the time the Constitution was written it was the common practice to use &quot;he&quot; for a person of unknown or unspecified sex. The use of that word cannot be taken to imply a restriction to males. If it were not settled before, the 19th Amendment granting voting rights to all adult women would have settled the matter. While it is true that no woman has yet been elected to, or held, the office of President, women have been elected to Congress. But the 2nd paragraph of Article I section II provides that: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. If the use of &quot;he&quot; were a restriction to male office holders, no woman could be elected to the House. And in fact the Hon Nancy Pelosi, a woman, is currently Speaker of the House, and would become President in accordance with law should both the current President and Vice-President die, resign, or become ineligible without a new VP being appointed and confirmed as provided for in the 25th Amendment. The argument made in the question is without merit.
If the spouse of the US president filed for divorce, would a) the President have any claim of immunity from any litigation that followed (e.g. the division of assets in the matrimonial pot, child custody etc.), The President could claim it, but the President wouldn't win. Notably, a number of state governors and mayors have divorced while in office, and other foreign heads of state have been divorced while in office. For example, a U.K. court recently handled the divorce of a UAE monarch (over his objections to jurisdiction on sovereign immunity grounds), applying the same common law principles of head of state and sovereign immunities that exist in U.S. law and concluded that it had the authority to move forward with the case. Also, any Presidential divorce would take place in state court, not in federal court. Federal courts do not have subject-matter jurisdiction over divorce and custody cases (under the &quot;domestic relations exception&quot; to federal jurisdiction), so the civil action could not be removed to federal court, unlike federal criminal cases involving the official duties of the President and unlike civil cases over which the federal courts have jurisdiction. b) would all the proceedings be fully held in private, This would be in the reasonable discretion of the judge. It would not be a matter of right, but it is quite plausible that a judge might close the proceedings, especially if minor children were involved. c) could the President themselves be compelled to take the stand and Yes. A party to a lawsuit may always be compelled to take the stand, at least if no other person can provide a full substitute for the party's testimony. In ordinary civil lawsuits against the President, a President is usually compelled to testify only if an underling involved in the same matter cannot provide equivalent testimony. In many civil cases naming the President in his official capacity, the President has no personal knowledge of the facts and so can't be compelled to testify. But that would rarely be true in a divorce case, and would never be true in a divorce case where custody was an issue. This said, a state divorce court judge would almost certainly be very deferential to the scheduling concerns of the President for that testimony, and might allow that testimony to be provided remotely via videoconference so as to minimize the interruption this would pose to affairs of state and to address the security concerns of the Secret Service (i.e. the President's official bodyguards). d) what would happen if the President refused to do so? The judge could hold the President in contempt of court, which is punishable by fines and/or incarceration. But a more likely outcome, tailored to minimize interference with government business, is that the Court would sanction a President who defied an order to testify by assuming as a matter of law that any testimony from the President would have been unfavorable to the President and make a conclusive adverse inference on the evidentiary issues about which the President was asked to testify against the President.
I'm not aware of any court ruling about the meaning of the &quot;14 years&quot; clause, but the plain reading of it would be that someone merely needs to accumulate 14 years of residency in the United States in order to be eligible to run for President. There's precedent for this, in the form of Dwight D. Eisenhower: he spent large parts of the period 1942-1946 in Europe before being elected in 1952.
Yes, the President can certainly veto such a law. Per the US Constitution (emphasis added): Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. This can have a very real effect: legislators are under no obligation to vote the same way on a veto override as on the original bill. The reason the President needs to supply written objections in the first place is that it lets legislators reconsider, see if they're swayed, or see if they think this is a matter where a Congressional majority needs to be respected even if they disagree (they can change their mind in either direction). They can also get a sense of public reaction. And because the threshold for this is "present and voting," it's possible that just more legislators show up. Even if legislators won't be swayed, it still matters for pocket vetoes. That's where the President neither signs the bill nor returns it within 10 days; normally this is equivalent to signing, but if Congress adjourns in the meantime, it means the bill does not become a law. Because "Congress adjourns" is a necessary part of a pocket veto, it's impossible to override the veto (you can't do it if you're not in session). And even when this doesn't apply either, it matters for politics. Example of a futile veto: Public Law 100-4. Passed 406-8 in the House, 93-6 in the Senate. Vetoed; veto was overridden 401-26 in the House and 86-14 in the Senate (note that at least 7 Senators who voted for the bill voted not to override the veto). Example of an effective veto: While technically there was a conference report agreed to by both houses, and it doesn't seem to have had a roll-call vote (my guess is it was agreed to by unanimous consent; side note: many, many laws don't have roll-calls to check on, because they're passed by voice vote or unanimous consent), H.R.10929 from the 95th Congress was passed in the House by a vote of 319-67 and in the Senate by 87-2. After President Carter vetoed it, the House voted on whether to override the veto. The motion to override was defeated 191-206: after the veto, they couldn't even get a simple majority to override the veto of the bill which had been passed by an overwhelming supermajority. I mentioned it above, but the two-thirds threshold is "present and voting." As a general rule, any time you see a fraction of something needed for a vote to succeed in a deliberative assembly, then unless it specifies some other denominator, it's talking about the fraction of members present and voting. Relevant CRS report on override procedure.
Super-legislative refers to Alito's contention that the court is effectively legislating, i.e. creating new laws; and doing so by overriding the formal legislative bodies. It is implied by a belief that no existing laws or precedents recognize a right to marry. One common criticism of courts exercising legislative powers is that they are not constrained in the same way that formal legislatures are, such as through elections. One criticism of super-legislative powers is that they prevent future legislatures from any variation. As a (contrived) example, because of the specific ruling you mention, no future U.S. legislature can uphold a law prohibiting some same-sex couples from marrying, say those that don't plan on raising children together. The source of the United States Supreme Court's 'super' powers is based in the longstanding idea that it possesses the power of judicial review, by which the court can invalidate the laws of legislatures (or the actions of the executive branch). Interestingly, "super-legislative" as a phrase seems to have peaked in popularity, according to Google Ngram Viewer, in the 1930s and 1970s. An example from the Ocala Star-Banner article "'Super' Legislative Body", published on June 18th 1964: The Warren Court has gone off making its own laws again, usurping the legislative processes of this country.
As far as I know, no single president has ever been in office long enough to see all supreme court judges retire, resign or die. So waiving his right to appoint new judges would just achieve two things: He would have less judges in his favor than if he'd just appoint a new one. He would help the next president, possibly from the other party, who could then appoint more judges to his taste, or possibly reap the rewards by not doing so. I guess no sane president would do that (and no insane president, either).
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.
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.