CENTRAL VIEW for Monday, September 28, 2020

Election 2020: Supreme Court takes center stage

Worried about a Trump-Pence victory, the Democrats claim to have over 600 lawyers ready to file lawsuits. That could mean the November 3rd election will be decided by the U.S. Supreme Court (SCOTUS) which is, as of this writing, minus one associate justice.

A bench of eight justices, rather than nine, creates the potential for never-ending tie votes. If the caseload threatened by the Democrats eventuates, the SCOTUS is going to need a full bench of nine justices.

By making an intra-session nomination of Amy Coney Barrett, President Trump fulfilled his Constitutional duty. The duty of the U.S. Senate is to confirm or reject the Barrett nomination. But what if the Senators make no pre-election decision and depart Washington, D.C.?

Don Brown, a former JAG officer, writing on September 24, 2020, in the American Thinker, suggests President Trump should make a recess appointment. But that would require the Senate to go into actual recess, something the Senate has not done since the last Bush Administration.

Assuming an actual Senate recess, here is Article II, Section 2, Clause 3 of the U.S. Constitution: "The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session."

As a intra-session recess appointee, Amy Coney Barrett would be sworn in right away and supposedly serve until the start of the new Congress in 2021; however, some legal scholars argue that an intra-session recess appointee, as opposed to an inter-session appointee who is limited to one year, can serve as long as two years. That sounds like, yet another, controversy for the SCOTUS to decide.

Wait. Has this ever been done before? Yes. According to Brown, "If President Trump makes a recess appointment this October... he would join the ranks of presidential giants like George Washington, John Adams, Thomas Jefferson, Abraham Lincoln, and Dwight David Eisenhower... A dozen times, presidents have made recess appointments of justices to the Supreme Court prior to Senate confirmation. Eleven out of twelve of those recess-appointed justices were ultimately confirmed by the Senate."

Wait. There’s even more: What happens if the Electoral College ties 269-269? That could happen. In that case, the House elects the President. Each state congressional delegation gets one vote. The U.S. Senate selects a Vice President by a simple majority vote.

There are 26 Republican delegations in the House and 23 Democrat delegations. Pennsylvania is tied. Ergo: President Trump would be reelected by the House., 26 to 23. Amazingly, it appears the Senate is free to elect any vice presidential hopeful, even Kamala Harris. Imagine a Trump-Harris White House. Or, a Biden-Pence White House.

And what if one or more state Electoral College delegations are alleged to violate state laws governing their procedures? The SCOTUS would have to decide such challenges. That could mean as many as 50 such lawsuits. Obviously, America needs a clean, decisive vote on November 3rd.

Suggested readings: The U.S. Constitution, Article II, Section 2, Clause 3. Gore v. Bush, 531 U.S. 98 (2000). The Heritage Guide to the U.S. Constitution, re: inter-session vs. intra-session recess appointments, page 215.

(c) 2020. William Hamilton.

Dr. Hamilton can be contacted at:

Email: william@central-view.com