President Obama and First Lady Michelle Obama (Photo credit: acaben)
As I explained previously (“Obama’s Eligibility and the 20th Amendment”), the 20th Amendment (ratified A.D. 1933) to The Constitution of the United States includes three references to a presidential “qualification” process.
This qualification process apparently takes place between the time when a presidential candidate is elected (last November 6th) and becomes “President elect” and the date when he is inaugurated (next January 21st) and becomes the President.
The purpose of the qualification procedure is to determine if the man who won the November election is actually qualified and therefore eligible to become the President in January. If the qualification procedure determines the President elect is not qualified to become President, the Vice President will be appointed to take over.
One problem is that this qualification process appears to apply only to the President elect and may therefore take place only during the 75-day interval between the November election and the January inauguration. In other words, if President elect Obama weren’t actually qualified to assume the office of President, we might only have a 75-day window of opportunity to challenge his qualifications.
My problem is that while the 20th Amendment clearly implicates some sort of qualification process, I have so far failed to find any law indicating what authority conducts the qualification procedure, or what the qualifications are. I presume that the “qualifications” may be the age and citizenship requirements listed in the Constitution.
Although I’ve only searched to discover this qualification process superficially, it seems strange that I’ve not yet found any law that identifies the qualification authority or specifies whatever qualifications must be met.
• However, I have found 3 U.S.C. §19 which refers to the presidential qualification process nine times—but doesn’t tell us what authority conducts that process or what qualifications are required. Thus, we appear to have a constitutional authority (20th Amendment) and a statutory authority (3 U.S.C. §19) for conducting a “qualification” process—but I can’t find anything to tell me who conducts that qualification process or what qualifications must be met.
• Here’s 3 U.S.C. §19:
Title 3 of the United States Codes is entitled “The president” (http://codes.lp.findlaw.com/uscode/3).
Chapter 1 of Title 3 is entitled “Presidential elections and vacancies” (http://codes.lp.findlaw.com/uscode/3/1).
Chapter 1 of Title 3 has 21 sections including Section 19 (3 U.S.C. §19) which is entitled “Vacancy in offices of both President and Vice President; officers eligible to act” (http://codes.lp.findlaw.com/uscode/3/1/19). The text of 3 U.S.C. §19 follows with my added [bold, bracketed comments]:
(a)
(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.
[The man who “acts” as President may be a “de facto” President rather than a man who is a constitutionally-qualified, de jure 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.
(b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.
[Insofar as the Speaker of the House must be “qualified” to become President but has not received any Electoral College votes to do so, Electoral College votes cannot be part of the “qualifications” to become President. This implies that the Electoral College has nothing to do with determining whether a President elect is “qualified” to become President. If so, then the authority able or charged with performing the qualification procedure should be either 1) the House of Representatives; 2) the Senate; or 3) the Supreme Court.]
(c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that -
(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and
[I have a hard time imagining the scenario represented by subsection (c)(1). It appears that under this scenario, there was a qualified President who was removed by resignation, impeachment or death. An Acting President was appointed to fill the office, but that Acting President would relinquish that office as soon as a new President or Vice President was qualified to hold the office.
Note that this de facto, “Acting President” is not to be replaced at the end of his term by a newly-elected and qualified President or Vice President. This de facto, “Acting President” is to be replaced during his term by an individual who somehow “qualifies” to be President in the midst of an existing term of office.
How can that be? There is no proviso for emergency presidential elections. How can a man who wasn’t elected to the presidency somehow “qualify” to be President during an on-going presidential term and while there is an otherwise acceptable de facto President in office?]
(2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.
[The inability to perform the duties of the office of President is not equivalent to being unqualified to perform those duties. For example a President may need heart surgery. While he’s in the operating room and the recovery room, he will be unable to perform the duties of his office. During that disability, the Vice President will become the “Acting President”. As soon as the President recovers from his operation, his disability will be removed and he will reassume the office of President.]
(d)
(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.
(2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service.
(3) The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.
[By taking the oath of office to be President, a man thereby resigns from his previous office as Vice President, Speaker of the House, etc..]
(e) Subsections (a), (b), and (d) of this section shall apply only to such officers as are eligible to the office of President under the Constitution. Subsection (d) of this section shall apply only to officers appointed, by and with the advice and consent of the Senate, prior to the time of the death, resignation, removal from office, inability, or failure to qualify, of the President pro tempore, and only to officers not under impeachment by the House of Representatives at the time the powers and duties of the office of President devolve upon them.
(f) During the period that any individual acts as President under this section, his compensation shall be at the rate then provided by law in the case of the President.
[The possibility of “failure to qualify” applies to all of the other individuals on the “list” who hold public office but have not been elected to be (not merely “act as”) the President.
I presume that the qualifications referenced at 3 USC 19 may be the same for all Presidents elect and all prospective “acting Presidents”. If so, then the “qualifications” that apply to President elect and Vice President elect do not include the votes from the Electoral College. I.e., the various persons eligible to become “acting President” include the Speaker of the House of Representative, the Senate’s President Pro Tempore, and then the list of cabinet officers—not one of which has received any votes from the Electoral College. Therefore and again, it appears that the Electoral College is probably not the “authority” responsible for determining if the President elect “qualifies” to become the President.
This implies that the probable authority for “qualifying” the President elect is the House, Senate or Supreme Court.
Again, while 3 USC 19 refers to “qualify” at least nine times, I have still failed to discover what those qualifications may be and who is responsible to determining whether a President elect is or is not “qualified”.
I’ve only searched superficially, so my failure to learn more about presidential “qualifications” proves nothing.
But I begin to wonder if there may be no statutory qualifications to become President. Maybe there were statutory qualifications prior to A.D. 1948 or prior to A.D. 1933 (when the 20th Amendment was ratified), but—maybe—those qualifications have since been repealed as have any statutes telling us who is responsible for “qualifying” the President elect and how the qualification procedure takes place.
It’s conceivable that a “failure to qualify” text in the Constitution may have been “created” by 20th Amendment in A.D. 1933, but Congress had so far failed to implement that “qualification” process with statutes.
I wonder if there’s a qualification process spelled out in the Articles of Confederation and which would apply to the President of The United States of America rather than the President of the United States.
As the King of Siam told Anna, “It is a puzzlement”. Actually, it just might be evidence of a very interesting constitutional puzzlement. I.e., it’s possible that the constitutional requirement found in the 20th Amendment (ratified A.D. 1933) may have never been statutorily implemented. If so, as unlikely as it sounds, it might be that no President in my considerable lifetime has ever been subjected to a “qualification” procedure to find out if he’s really eligible to hold the office of President. If so, we might wonder how many other “unqualified” Presidents (besides Obama) have occupied the White House.
• If any of you would like to investigate further, you might find some clues in the following text from the “CRS ANNOTATED CONSTITUTION” at http://www.law.cornell.edu/anncon/html/amdt20_user.html#amdt20_hd4
Which reads,
“Pursuant to the authority conferred upon it by Sec. 3 of this amendment, Congress shaped the Presidential Succession Act of 1948 5 to meet the situation which would arise from the failure of both President elect and Vice President elect to qualify on or before the time fixed for the beginning of the new Presidential term.”
“5 Ch. 644, 62 Stat. 672 , as amended, 3 U.S.C. Sec. 19 . See also the Twenty–fifth Amendment, infra, pp. 1991–93.”
