- This video was made
possible by Tab for a Cause. Raise money for charity
just by opening new tabs which you were going to do anyway. The coronavirus is wrecking
havoc on the world. Gone is the basketball
season, the summer Olympics, and, unfortunately, baseball. But at least the Nationals will remain World Series
champions for another year. So many things are getting canceled that people are wondering what else could possibly be canceled before this thing is over. Particularly, people are worried about the upcoming Presidential election. Once considered completely unthinkable, people are now legitimately
asking this question, especially since this has already impacted the political process. Already several democratic
primaries have been postponed, even within hours of their
scheduled primary date. For example, Ohio Governor Mike DeWine actually asked the State Supreme Court to postpone their primary election. When the Ohio Supreme
Court denied his request he simply ordered the polls closed, effectively circumventing
the court's decision. - This is not about politics. This is about protecting
Ohio's citizen's lives. - So if it's possible to
postpone a primary election, can the general election
be postponed as well? It's natural to wonder if President Trump already has a legally
plausible plan up his sleeve to just cancel the election entirely and start a 2nd term in office unelected. So can the president actually cancel the general
election this November? The answer will surprise you. (orchestral music) Hey Legal Eagles, it's
time to think like a lawyer because our democracy is at
stake, or is it? (eagle caws) There's certainly a lot of uncertainty about the November election and that was even before
the current pandemic. Will we be standing in line
to vote with masks and gloves or will we be able to mail in our vote or will President Trump just take over and become the dear leader for life as all true Americans want him to? Well, today we're going
to discuss whether or not the president can actually
cancel the general election and all of the wacky legal
implications that this has. Full disclosure, some of
the issues in the analysis in this episode come from the
podcast Opening Arguments. Opening Arguments is a great podcast run by Attorney Andrew
Torrez and Thomas Smith. Andrew took a deep dive into this subject in response to a thought experiment by Vox journalist Ian Millhiser. I'll drop a link to the
Opening Arguments podcast in the doobly-doo. Definitely check it
out, it's really great. So the question is can Trump
cancel the general election? Now look, I'm not going to bury the lead and make you sweat
through this entire video to get to the answer. The bottom line is the president cannot
legally cancel the election. It probably won't happen. Now, could he try? Well sure, anyone can try anything just like anyone can sue
another person over anything but it doesn't mean that
they're going to be successful. But no matter what way you slice it, even with President
Trump's ever expansive view of his Article II presidential powers. - Then I have an Article II where I have the right to do
whatever I want as president but I don't even talk about that. - Even he can't take steps that would effectively
morph his presidency into a dictatorship. That's because the Constitution itself places specific parameters
on presidential terms, including the length of a president's term as well as the specific date and time as to when that term ends. But that's just the beginning of the insanity that would happen if the election were in fact canceled, and in this context I'm
using the word canceled to mean the president actually puts troops and prevents people from
actually going to the polls because he can't legally
cancel the election, so we're talking about some
really drastic moves here. Now, that being said
the Constitution states, "The President shall hold his office "during the term of four years." And even more specifically it
states in the 20th Amendment that his term, "shall end at noon on
the 20th day of January." Very specific, not much wiggle room. Furthermore, the President is elected by each of the state's
electors under Article II of the Constitution
and Congress determines the time of choosing of the electors and the day on which they
shall give their votes. Remember, the President it
elected not by popular vote but by the electoral college and you'll see later in this video even if President Trump opts out to become a squatter in the White House, legally the presidency
would pass to somebody else, effective on the 29th of January, 2021. Now, I could already hear
you saying in the comments, great, thanks for the quick
constitutional law lesson but regardless of what
the Constitution says, could the President
still find some shady way to use the coronavirus to his advantage to postpone or possibly
cancel the November election. For instance, can the
president declare martial law due to the pandemic and legally
circumvent the Constitution? Well, the answer to this and
any other similar question is mostly no. More specifically, when it
comes to the Constitution there's no known circumstance that can suspend the
enforcement of the Constitution, not a pandemic, not a
natural disaster, not a war, and not even a war fought between citizens of the same country,
specifically the Civil War, and believe me, it was tried. And that was the case in the
famous constitutional law case of Ex parte Milligan
which is the seminal case for simply saying that the
Constitution is the Constitution and no matter the circumstances,
the Constitution applies. Ex parte Milligan was
born out of the events surrounding the Civil War. Like a pandemic, a civil war
is an unprecedented event and President Lincoln suspended
the writ of habeas corpus, which was an unconstitutional event. So the first question is in this context, what is a writ of habeas corpus? A writ of habeas corpus, as
you've probably seen in movies, is a federal tool uses to bring
a prisoner before the court to determine if their imprisonment
or detention is lawful. The drafters of the Constitution actually considered a
writ of habeas corpus to be so important that they included the concept
of petitioning the court for a release of a prisoner
who's unlawfully detained in the first Article of
the actual US Constitution, not in the Bill of Rights,
not in the Amendments, but in the actual Constitution itself. Now, Article I states that, "The privileges of the
writ of habeas corpus "shall not be suspended unless "when in cases of rebellion or invasion "the public safety may require it." President Lincoln suspended
the writ of habeas corpus at the same time that
he declared martial law. Martial law is basically the law administered by military forces that is invoked by a
government in an emergency when the civilian law enforcement agencies are unable to maintain
public order and safety. And by the way, it's martial
law spelled M-A-R-T-I-A-L not Marshall spelled M-A-R-S-H-A-L-L. This is not some guy named
Marshall, it's martial as in war, war-like law, it's just
a pet peeve of mine that I see people misspelling
all the time on social media. Anyway, notwithstanding, the
facts of ex parte Milligan involved a racist lawyer by
the name of Lambdin P. Milligan who was charged with conspiracy
against the United States. aiding and abetting the confederacy, and inciting insurrections. Now, when Lincoln suspended
the writ of habeas corpus and declared martial law, the government tried to
circumvent the courts and said that Milligan
could be legally tried in a military tribunal instead of through the
civilian court system where he was quickly convicted
and sentenced to hang. But, before Milligan could be hanged he sued to stay the execution and the Supreme Court agreed with him saying that you can't
suspend habeas corpus. The Supreme Court held that
it was unconstitutional to try civilians by military tribunal unless there were no
civilian courts available, which wasn't the case. In support of the Supreme Court's holding, the court noted, and
here's the important part, that citizens have certain
rights by the Constitution such as the trial by jury and that this constitutional
guaranty was quote, "intended for a state of war
as well as a state of peace "and is equally binding
upon rulers and people "at all times and under
all circumstances." Bottom line, if Lincoln couldn't
get around the Constitution while Americans were literally
at war with each other, then President Trump
doesn't stand a chance of being able to step outside the confines of the Constitution due to
the coronavirus pandemic. But, could President
Trump try to reschedule or postpone indefinitely the election? Well, as President Trump
is finding out the hard way regarding emergency powers, a lot of election power
resides with the states. Article I states that, "The
times, places, and manner "of holding elections for
senators and representatives "shall be prescribed in each state "by the legislature thereof,
but the Congress may "at any time by law make
or alter such regulations "except as to the places
of choosing of senators." So election law is really up to the states with a little bit of oversight from Congress and the Constitution. Federal laws have long been on the books that dictate when the
President, Vice President, and members of Congress are elected. You can look to three US C
one, which states that quote, "The electors of the
president and vice president "shall be appointed in each state, "on the Tuesday after the
first Monday in November, "in every fourth year
succeeding every election "of a President and Vice President." Similar laws set the date
senators and congresspeople start their term, the
third day of January. These laws are incredibly specific and nothing in them provides any exception for the President to
move these dates around. And since we have federal
statutes in place, people should have solace that the President cannot
simply reschedule the election. As democratic presidential
candidate Joe Biden put, "We voted in the middle of the Civil War, "we voted in the middle of
World War I and II," and so "The idea of postponing the
electoral process," it just, "seems to me out of the question." - This is about making sure that we're able to conduct our democracy while we're dealing with a pandemic. - So, now we've established
the Constitution and federal statutes are specific about when the elections take place and when the president's term ends. Both the Constitution and federal statutes can only be changed by a
subsequent act of Congress to amend them, and the president can't take any unilateral action to supersede them independently. But President Trump has
repeatedly stated his belief that Article II gives him absolute power. - It's a thing called Article II. Nobody ever mentions Article II. It gives me all of these rights at a level that nobody
has ever seen before. We don't even talk about Article II. - So what if in the coming
months President Trump thinks that he might lose the general election? What could President Trump do? Well, there are basically two
things that President Trump could attempt to do to remain in office. He could try to convince the states to take away their citizen's
right to vote for president or he could try to use the military to physically prevent people from voting. The first scenario is much more plausible; though, still very, very unlikely. Because the 50 states
hold considerable power in determining the rules for elections, including federal elections, then that happens to take
place within their borders. The states can control
the method of voting that will be used, whether or not a felon can
vote for example, and what, if any, identification voters
much show at the polls. Though, of course there are
some constitutional limitations to those kind of restrictions, namely from the 15th Amendment
and the Voting Rights Act which deal with ensuring that
citizens aren't prevented from voting due to discriminatory
or arbitrary means. But other than that the elections are mostly under
the control of the states and, if forced, potentially states could
find alternative ways to hold congressional or
presidential elections with each state
secretively scheduling them outside of the designated
federal election day. Or conceivably if people
are physically prevented from going to the polls no matter what, then conceivably the state legislatures could take back the
power of their electors in the electoral college and
vote in the electoral college the way that they think
that their state population would vote in the general election. Which, of course, would
be incredibly ironic because it would actually be a good use for the electoral college,
which under normal circumstances there are simply no good defenses for the electoral college
in this day and age to thwart the popular vote. - Two thumbs down. - And anyone who tries to
defend the electoral college is simply wrong, and/or
dumb, but I digress. So, even if the president
successfully, albeit illegally, thwarts the election and
electors never cast their vote or their votes are never counted, there are constitutional
provisions already in place that we discussed that
would prevent his term from naturally extending. So, if the election doesn't go forward then President Trump doesn't
just get to remain in office. To find out what would happen we'd just have to go
back to our conversation at the beginning of this
video, which if you'll recall is the fact that the president
shall hold his office during the term of four years and specifically the 20th Amendment, which provides for an
end date of that term which provides that the
president's term shall expire on noon on the 20th day of January. So, if there is no election, then by default the president's
term ends on January 20th. One way or another he's
out of the White House. This doesn't depend on
President Trump's willingness to vacate the White House. Legally, he is no longer the president and I suspect if he stayed there, there would be some big
men with green uniforms and big pointy guns that would remove him
from the White House. - Unless they give me an
extension for the presidency. - But if President Trump isn't
the president then who is? Let's play this scenario out
just a little bit further because we've established
that President Trump is no longer the president
come January 20, 2021. But that still begs the question, who is? Now, I'll tell you who
would become president but first I wanna tell you
who should become president, that's Jose Andres. Jose Andres is basically the
patron saint of DC these days. The world-famous chef created something called the World Central Kitchen to feed those in need during
natural and manmade disasters. They were on the ground in
Puerto Rico for Hurricane Maria and they're out in the
streets helping people during this pandemic. They've already served
over 15 million meals. I just gave $500 and it
would mean the world to me that if you're in a position to give, if you could give a little bit as well. The link to the website
is in the description, every little bit helps,
and it would be great if we could come together and help people during
this coronavirus pandemic. But, the question is who
would become president in this crazy situation
where there was no election? Under normal circumstances,
the constitution and the federal statutes
provide an order of succession for who would take over
the powers and duties of the office of president in the event the current president is
incapacitated, dies, resigns, or is removed from office or in this case his term
has effectively ended, and you may recall under
this line of succession, which we have covered a
couple times on this channel, under Article II of the Constitution after the president it
goes to the vice president and then precedes next to
the speaker of the house, the president pro tempore
of the Senate and so forth under the Presidential Succession Act. Now first things first, we can eliminate some of these options because under this hypothetical there hasn't been an election. And so just as the president's
term expires on January 20th so too does the vice
president's term expire. So the vice president
can't pick up the mantle for the president whose term
has expired on the same day. And then next, we can't
necessarily give the presidency to the speaker of the
house because remember, members of Congress are
reelected every two years. So every time there's
a presidential election all of the congresspeople
are also reelected. So if there is no general election then there aren't going to
be any members of Congress in the House of Representatives. There might be some people in the Senate because they're elected on
a six-year staggered basis but there would be no members of Congress, for the most part. So this creates a bunch
of really, really weird Constitutional scenarios, but we know a couple things for certain. Number one, we know that the
president's term expires, so that president can't remain president. Number two, vice president's
term has also expired. We know that there aren't
any members of Congress, presumably, at least in the first instance so there's no speaker of the house. So that leaves a couple
of really weird scenarios. Number one is that if
these state legislatures or the state governors got together and just simply agreed to reappoint all of the members of Congress,
then you have a sitting body in the House of Representatives. If that's the case, then President Trump would have to swallow hard
when he finds out that, that means his archenemy Speaker
of the House Nancy Pelosi would now be filling his shoes as the third in line of succession. Now, the other option would
be that those in Congress whose term was set to expire
would not be reappointed, which would completely abolish
the House of Representatives, at least in the short term, since they're all voted
on every two years, and at that point what we have
is 2/3 of the senators left since 2/3 of the senators
weren't up for reelection but 1/3 were up for reelection. So in this scenario, we have no president, no vice president, no
speaker of the house, and no members of the
House of Representatives. What that means then is we
would go to the fourth person in the line of succession which would be the president pro tempore of the Senate as the acting president because they're next
in line for succession. Now, you can be forgiven if you have forgotten
your high school civics. The president pro tempore of the senate is generally the oldest serving member of the majority party in the Senate and in this case that would
be Senator Chuck Grassly, the republican senator
who is 85 years young from the great state of Iowa who is currently the president
pro tempore of the Senate. So, does that answer the
question, President Chuck Grassly? Well, probably not because remember I said that 1/3 of the senators are
actually up for reelection in this election cycle. So I don't think that the state governors are just going to sit idly by. They would probably
appoint interim senators to fill the gaps left by the senators who were up for reelection. And so then you have to look
at how many of the vacancies would be filled by republican governors and how many vacancies would be filled by democratic senators? And thankfully the math
has already been done by Andrew at Opening Arguments who figured out that there
are more democratic governors who would fill vacancies
than republican governors who would fill vacancies. So, at the end of the day, of the senators who are up for reelection and are being reappointed,
that probably means that there would be a democratic
majority in the senate, which means that the president pro tempore would be nominated by the democrats and the senior most democratic
senator in the Senate is none other than
Vermont Senator Pat Leahy. So, we can all welcome President
Pat Leahy to the office. So there ya go. In the wildest of twists, the most likely outcomes
if President Trump were to somehow cancel the election is either President Nancy
Pelosi or President Pat Leahy. I don't really know how to feel about either of those two scenarios. But after all of these crazy hypotheticals and rabbit holes that we've gone through, I'll say one more thing
to ease everyone's mind. There is no plausible way in which the president could cancel or even postpone the election
and remain president. We have held presidential
elections in multiple world wars, in civil wars, in past pandemics, and even when the White House
was burned to the ground by the British. As we've done in the past, we will elect our next president
the good old fashioned way and we will not have to
deal with a President Pelosi or President Leahy. Now, if you're waiting to see
what happens to our democracy and our economy and you wanna
do some good for this world, I'd recommend Tab for a Cause, which lets you raise money for charity just by opening new tabs
in the browser window, which you were gonna do anyway. Tab for a Cause is a
Google Chrome extension that allows you to pick
the charity of your choice then every time you open up a new tab, instead of a blank page, it displays a beautiful
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is really helpful too. You can customize it with graphics. I like to see pictures of the outdoors to remember what that actually looks like. You can create bookmarks,
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way to give to charity and you could even just sit there and just open up a bunch of tabs for fun. So just click on the
link in the description and download the
extension and do some good by doing what you were gonna do anyway. So do you agree with my analysis? Leave your objections in the comments and click on this playlist over here with all of my other analysis about all of the legal
issues surrounding COVID-19 and just click on this playlist
and I'll see you in court.
Woot, as a Patreon to OA, I'm always happy to hear about it elsewhere.
I love Opening Arguments, Legal Eagle, and Volokh Conspiracy and I'm not a lawyer. Now my wife and kids follow them too. Depending on whether your listening to a podcast in the car, watching YouTube during shelter-in-place, or just browsing legal articles on your tablet. Fair warning that VC, while it does have some contributors from the left, cannot be remotely classified as left.
Anyone know the OA episode that he references, by chance (states appointing senators)?