Alternate History: What If William Rehnquist Had Suffered Crippling Back Pain In December 2000?

Fun, History, Law

Blogging is probably going to be light today, so I'll pose a hypothetical question that may never be answered.

First, we know that the late William Rehnquist, the former Chief Justice of the United States Supreme Court, did suffer from severe back pain for much of his career.  Suppose that during the month of December 2000, Rehnquist's back pain became so severe that, due to surgery or narcotics, he was temporarily unable to fulfill his duties as Chief Justice.

On December 8, 2000, the Florida Supreme Court ordered a statewide manual recount of all ballots cast in the Presidential election held the month before.  The Florida recount, according to some, might have taken months to complete and certify.  President Bill Clinton was scheduled to leave office on January 20, 2001.

On December 12, 2000, the Supreme Court ordered a halt to the recount, handing an effective victory along with Florida's electoral votes to George W. Bush in the still controversial case of Bush v. Gore.  The case was decided by a vote of 5 to 4, with Rehnquist in the majority.

Now, if any Justice in the majority, let's say Rehnquist, had been unable to decide the case for any reason, the vote would be 4 to 4, leaving the lower (Florida Supreme) Court's decision standing.  The recount would go on.  Let's say until March.

Which leads to another question: Who would be President on January 21, 2001?

You are armed with a copy of the United States Constitution, the most authoritative document which purports to answer this question.  And I'll submit that its answer is not at all clear.  You may use any school of legal reasoning to decide this question.  You will receive extra credit for explaining your answer in detail, whether by reference to text, history, statute, or case law (assuming that, unlike me, you can find an applicable statute or case).

Last 5 posts by Patrick Non-White

23 Comments

23 Comments

  1. Professor Coldheart  •  Jan 10, 2011 @10:13 am

    I like the thought experiment, but when I saw the title I was hoping for a thought experiment in which SCOTUS (and federal judges) went easier on doctors prescribing pain medication.

  2. Patrick  •  Jan 10, 2011 @10:16 am

    This is speculative history, not fantasy.

  3. Steve  •  Jan 10, 2011 @10:31 am

    I would assume Speaker of the House. Reasoning: Presidential line of succession. The terms of the President and Vice President have logically closed – they no longer hold the office. Thus, by Amendment XV and the Presidential Succession Act of 1947, the Speaker of the House would logically hold the office.

    Arguing from the text:

    "(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.
    (2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection."

    I would argue that the legitimate end of the elected term is a failure to qualify / removal from office, given that A) Bill Clinton was Constitutionally forbidden from holding an additional term, B) Despite the lack of a declared victor, he logically would not be the victor of any election.

    Given that Article II declares that the president shall hold the office, along with the Vice President, for a term of four years, it therefore stands to reason (at least in my mind) that after this term is up, and failing for them to be declared victors in the following election, they are no longer eligible for the office. Ergo, chain of succession.

  4. Ken  •  Jan 10, 2011 @10:37 am

    And thus, the President of the United States would have been a man with a name that sounded suspiciously like "Hastur." Ia! Ia! Cthulhu Fhtagn!

  5. James  •  Jan 10, 2011 @10:43 am

    The 20th Amendment lets Congress pass laws to deal with situations like this and I believe the Presidential Succession Act already does: "If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President."

    The problem with this approach is that the 20th Amendment says, "If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified," implying that failure to chose a President is different from failure to qualify, which is the only thing mentioned in the Presidential Succession Act that could possibly apply.

    Alternatively, Congress could possibly count the electoral votes as planned and then choose the President by ballot, since no one would have a majority.

    Whatever happened, it would probably end up at the Supreme Court again, which would probably end in a tie again if Rehnquist was still unable to work. Perhaps this type of scenario is a good reason to allow retired justices hear cases when a standing justice is unable to do so.

  6. Scott Jacobs  •  Jan 10, 2011 @11:26 am

    Well, I suspect that the Equal Protection question would have remained answered, and I would posit that Kennedy would have sided with Souter's group, and the case would have been remanded, one standard set, the ballots recounted, and Bush would have ended up winning.

    But I base that last bit on the fact that when the count was done by an outside group after the whole thing was over, Bush ended up winning anyways.

  7. Amiable Dorsai  •  Jan 10, 2011 @12:20 pm

    Wouldn't the election, as per the 12th Amendment, go to the House of Representatives? Without Florida's electors, neither candidate would have had "a majority of the whole number of electors appointed."

    Who wins then, I'm not sure, but, supposing each state's Congressional delegation voted according to the popular vote of that state, well Bush won 28 states (excluding Florida) to Gore's 21.

    If the vote goes according to Congressional party affiliation, I don't know-each state gets one vote, presumably for whatever candidate its delegation decides on. I'm too lazy busy to make a state-by-state count.

    Which brings up a question: If a state's congressional delegation can't come to agreement, (say they have a D to R ratio of one) does that state simply lose its vote?

  8. Patrick  •  Jan 10, 2011 @12:42 pm

    At the time the Republicans had a solid majority in the House, Amiable. I don't believe that Representatives are required to vote as their states did in the event an election is thrown to the House.

    In the only election where the House decided the result, that of 1824, there were a number of split delegations.

  9. Amiable Dorsai  •  Jan 10, 2011 @1:22 pm

    Patrick, I know the Republicans had a majority of Representatives, the question is, did they have a majority of delegations? Remember, each state gets only one vote, presumably reached by caucus of its delegation.

    It's interesting that the 20th Amendment didn't amend the 12th's March 4th deadline; I hadn't noticed that discrepancy until now.

  10. Amiable Dorsai  •  Jan 10, 2011 @2:30 pm

    OK, OCD has gotten the better of me; I count 27 Republican-majority delegations, 18 Democratic, 4 tied and 1 independent. Unless the House sits on its hands, or several Congressmen jump ship, the election goes to Mr. Bush.

  11. Paul Baxter  •  Jan 10, 2011 @2:45 pm

    My suspicion is that it would have been William J Clinton, as I don't think there would have been sufficient agreement or cooperation by that date to place a new person.

  12. SPQR  •  Jan 10, 2011 @3:07 pm

    I think it would have gone to the House given that in January no one would have had enough electoral votes. On January 21, 2001, then George W. Bush would have been inaugurated if, as Amiable Dorsai latter counts, the House state by state would have voted him as President.

  13. Chris  •  Jan 10, 2011 @4:09 pm

    Florida would (presumably) be unable to select electors.

    The constitution doesn't say what happens if a state doesn't certify or select any, but common sense assumes that one state's inability to fulfill their responsibility can't remove the rights of other states to appoint electors and stop the entire constitutional process. So there's 538 – Florida certified electoral votes on the date set by congress. The President of the Senate opens all the votes. Gore has the majority of the electoral votes cast. He wins.

    If a state refusing to set electors can trigger the "no person gets a majority" clause, then any combination of states can throw the election to the House by refusing to send electors, and that seems like a massive hole.

    I am not a lawyer, and the question doesn't give me a copy of the Florida state constitution, so this is really uninformed.

  14. Chris  •  Jan 10, 2011 @4:11 pm

    Should have been "Any combination of states whose vote total is greater than the margin of victory can…"

  15. Cappy  •  Jan 10, 2011 @4:11 pm

    Congress would vote on a President who would fill the vacant office until the votes could be counted. Once the President is declared through the vote, then the temporary President would vacate the Office.

    (In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.) (This clause in parentheses has been modified by the 20th and 25th Amendments.)

    An argument could be made that the Vice President would fill the Office until a President is elected as the VP has not been a President.

  16. James  •  Jan 10, 2011 @4:33 pm

    Cappy, whatever would happen, it wouldn't be that. Either Congress would choose the President because of a lack of majority, Gore would be President as he got a majority of electoral votes cast by the deadline, or the Speaker of the House would act as President until the recount was finished and Florida cast its ballots. Congress could not elect a temporary President.

    The problem with a VP filling in the role would be that the VP vote is tied to the Presidential vote, so the office of the VP would be equally empty at the time.

  17. Amiable Dorsai  •  Jan 10, 2011 @4:51 pm

    Chris, the wording of the 12th Amendment is: "The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed…" IANAL, but I read that as one more than half of the total number of electors called for by the Constitution's formula (currently 538), or 270 votes. Neither Gore nor Bush had that many without Florida's votes. If I have that right (Legal Eagles who know otherwise, please chime in), the election goes to the House.

  18. Steve  •  Jan 10, 2011 @5:16 pm

    @James: wouldn't that mean the current (as of the date of the electoral vote deadline) vice-president, Al Gore, rather than either of the potential vice-presidents elect Cheney or Lieberman?

  19. James  •  Jan 10, 2011 @5:31 pm

    @Steve At noon on January 20th there would be no Vice President if the electoral vote was not certified. I don't see how Gore could be eligible as former VP any more than Clinton would have been as former President.

  20. Mike  •  Jan 10, 2011 @6:09 pm

    The same thing we do every time this happens. Glenallen Walken (played by John Goodman) steps in as Acting President until we can sort it out.

  21. Base of the Pillar  •  Jan 10, 2011 @9:16 pm

    What if we didn't have an electoral college system that isolated the issue and we had to have a nationwide recount to evaluate a 0.5% vote differential?

  22. John David Galt  •  Jan 11, 2011 @1:12 pm

    Wasn't the 12th Amendment passed because the House did have to decide Jefferson vs. Burr?

  23. Chris  •  Jan 11, 2011 @2:46 pm

    @Amiable Dorsai But it's the role of states to appoint electors, no? "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." If a state refuses to appoint electors, or is unable to do so, then there's no alternative path for electors to be appointed.