Can the current President of the United States block the transfer of their office to the next elected president?

  • As indicated by commentary in the news, a considerable amount of people seem concerned about who wins the U.S. Presidential election. For this reason we have for example articles like this Op-Ed in LA Times (by James Kirchick, a fellow with the Foreign Policy Initiative) saying that the election of some individual as the next President could even result in a coup in the U.S.

    The article describes a situation such as follows:

    Try to imagine, then, a situation in which Trump commanded our military to do something stupid, illegal or irrational. Something so dangerous that it put the lives of Americans and the security of the country at stake. (Trump’s former rival for the Republican presidential nomination, Marco Rubio, said the United States could not trust “the nuclear codes” to an “erratic individual.”) Faced with opposition from his military brass, Trump would perhaps reconsider and back down. But what if he didn’t? Blimpish swagger might fly within the patriarchal confines of a family business...or a dictatorship. It does not work, however, in a liberal democracy.

    In that case, our military men and women, who swear to uphold the Constitution and a civilian chain of command, would be forced to choose between obeying the law and serving the wishes of someone who has explicitly expressed his utter lack of respect for it.

    So now to a hypothetical situation, in which:

    1. A person has won the election as far as both the popular vote and the majority of the votes from the Electoral College are concerned.
    2. The current administration has determined that, for the sake of [some reason(s)], that persons presidency needs to be blocked.

    Some time ago, statements were made by Rush Limbaugh about the current president somehow extending his own Presidency past 2016. In a discussion with Rush Limbaugh, Ben Carson stated that the 22nd amendment makes that impossible.

    But if we look at the wording of the 22nd amendment we can see that it says that...

    No person shall be elected to the office of the President more than twice

    ...and this refers to not being elected to office, i.e. a reference to the individual being elected through the popular and electoral vote, for a third time. This amendment also does not say anything about the length of the terms a President can be in office.

    Thus it seems that the 22nd amendment alone would not be sufficient to block the President from e.g. simply continuing his presidency (and bypassing the election process altogether).

    The President would still need some authority to extend his term in office, however.

    According to some information on the web (esp. at many sites devoted to conspiracy theories), the President could do this with the help of Executive Order 12919. This Executive Order is often described as allowing an incumbent President to overtake control of all the resources and bypass Congress through a declaration of martial law. Supposedly it could be used by the President to stay in power permanently.

    However the information about Executive Order 12919 at UNT Digital Library states that:

    The scope of Executive Order 12919 is sometimes misunderstood. For example, congressional offices sometimes receive correspondence expressing concerns that Executive Order 12919 reflects an attempt by the President to assume powers not conferred on him under the Constitution and to consolidate all the powers of the federal government under the Executive Branch and also that the Order somehow allows the President to declare martial law. Those concerns are unwarranted. As its caption (i.e., National Defense Industrial Resources Preparedness) itself implies, Executive Order 12919 relates exclusively to the preparedness of U.S. defense-related industries in times of war or other national emergencies. It has nothing whatever to do with declarations of martial law. It has no effect at all on the continued powers of Congress and the federal courts during periods of war or other national emergencies.

    Other similar scenarios found online would involve the Insurrection Act of 1807 (10 U.S.C. 331) or the Posse Comitatus Act of 1878 (18 U.S.C. 1385). However I did not find anything in these that would allow the President to extend their own time in office.

    But perhaps there are some alternatives that do not involve the President to extend his own Presidency(?)

    The question is:

    Would an incumbent President have any legal means or other authority to block someone from being president if the latter wins the majority of votes from both the voting public and the Electoral College?

    The theoretical/legal question is one thing, but it is safe to say that Obama would be **extremely unlikely** not to cede power to his elected successor.

    "legal means **or not**" - the second part makes the otherwise interesting question meaningless, no? Of course he has illegal means to stay in office (it's a different question how realistic those means are to succeed, but the means obviously exist).

    I removed the names of a presidential candidate and a president (where possible without falsifying literal quotes). The constitutional situation is the same no matter who is president and who is elected. Focusing on a specific candidate is just distracting.

    @user4012, my question did not actually say "legal means or **not**" but "legal means or **other**" in the sense of "...[legal means or other] authority...". Apologies if it was a crazy sentence construction.

    removed the square brackets around "legal means or other" so that the sentence now clearer reads the (originally intended) "legal means or other authority"

    The question is really can Obama legally declare a coup. The answer is no.

    `Something so dangerous that it put the lives of Americans and the security of the country at stake.` Doesn't every president do this?

    I would note the US South used to be part of the US until it decided it had the "legal right" to secede, and shoot at federal troops. Mr Lincoln responded to this with his own legal argument, based on the solid legal principle of "i have a huge army". We could also analyze the legalistic manipulations of modern foreign dictatorships like Nazi Germany, Soviet Union, or even Xi Jinping's China (you can decide what is legal if you take over control of the legal profession, rewrite the laws, change what words mean, and kill dissenters).

    Interesting to note that this question was posed in Jul 2016, in the run up to the Clinton-Trump election... The concern then seems to have been that Obama might not cede to Trump! Incidentally, it is not necessary for a candidate to win a majority of the popular vote to be elected. Trump had fewer individual votes than Clinton but won on Electoral College votes.

    ... asking for a friend?

    If it is in the National Interest?

    Upvoted now, four years after the OP, because now the shoe is on the other foot, a different crop of people are asking the same question, and so the question retains some relevance.

    @EvilSnack and a few months later, the coup thing is no longer only imaginary

  • cpast

    cpast Correct answer

    5 years ago

    Under section 1 of the 20th Amendment,

    The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

    Obama cannot constitutionally extend his term. No emergency powers can override that section of the Constitution. If Ted Kaczynski (aka "the Unabomber") receives a majority of the electoral votes (popular vote has no legal effect) for President, as officially counted by a joint session of Congress presided over by the President of the Senate (i.e. Biden), and if Kaczynski meets the constitutional requirements to assume the office (he does), then Kaczynski is sworn in at noon on January 20, 2017.

    The mechanics of the joint session are laid out by federal law. Congress meets on January 6 and receives the vote tallies from all 50 states as certified by state authority. In general, only one certificate of electoral votes is received from each state, and unless a majority in both houses of Congress determines that the votes were not regularly cast by lawfully appointed electors, they're counted. Other rules apply in other situations, but Obama has no role in any of these situations (the other situations are mostly where multiple sets of purported electoral votes are received, but Obama can't get a second certificate certified by state authority).

    Extralegal means are honestly not worth discussing. By their very nature there are no rules governing them, and no relevant authority. Obama commands the military, but members of the military swear primarily to obey the Constitution and have a duty to refuse unlawful orders. Obama is not physically able to personally prevent anyone else from assuming office, and if we're positing members of the executive branch listening to Obama and not federal law or the Constitution, there's no basis for saying what would or wouldn't happen.

    "Obama is not physically able to *personally* prevent anyone else from assuming office" - unless he takes a gun and shoots the president-elect, of course. He'd have to get it past his own security detail, but it's theoretically feasible.

    Or the incumbent administration could arrange for e.g. an army sniper who works in the kind of undercover "soldier of fortune" roles to shoot (or bomb) the unwanted candidate during a party rally or something. And afterwards setup a "commission" to "investigate" what happened. Sort of like what CIA did to JFK according to some sources. This is not extralegal is it? I mean the Presidents office has the "duty" to protect the "interests of the nation" I suppose.

    @x457812 I am not a lawyer, but I am pretty sure that assassinating political opponents is illegal in the United States.

    @Philipp Typically, but this year they got rid of the rule protecting politicians on Purge night just so...wait, wrong election year

    @gerrit: Killing the president-elect won't keep the outgoing president in office.

    @Joshua I know.

    @Philipp technically, until and unless it became known that the president ordered the shooting it's not the president's doing. Now what would happen if the president elect is killed in between being appointed by congress and actually taking the oath of office? Who'd hold office until new elections (I guess) could be organised? Especially if both the president elect AND the vice president elect were killed.

    @jwenting I think we already got a question about that somewhere. When not, you might want to ask it.

    Just for the sake of argument, what would happen if the President (possibly with the help from Congress) makes changes to the Daylight Saving Time laws in such a way that at 11am on January 20th the clock is moved 2 hours forward, and therefore the moment "noon of the 20th of January" never occurs?

    @Pasha Realistically, people would probably either consider the term to have ended at 1 PM or at 2 PM (i.e. old 12 PM) in that case.

    @cpast i think this answer depends on a generally agreed definition of things like Congress, Electoral college, Senators, Houses of Congress, Majority, etc etc etc. We are now, years later, growing quite used to politicians changing the meaning of basic words and phrases.

    Even if the outgoing president (or someone who supported him) arranged the assassination of his replacement, that wouldn't make him still be president. I suppose you could quibble about constitutionality if the new president was killed before his term began, but I think the obvious thing would be that it would be treated just as if it had begun, that is, the vice president elect would become president. If he was also assassinated, then it would be the speaker of the house. If that office is also in transition, we'd have a novel political situation, but I presume the house would elect a ...

    ... speaker and then he would promptly become president. I'm sure this would end up before the supreme court, but I strongly suspect that that is what they would rule. I, and I think most others, would be truly astounded if the court ruled that because the incoming president was assassinated, that therefore the outgoing president should stay in office. That would be a ridiculous ruling. If they were of opposite parties, it would be practically encouraging political violence by whoever lost future elections.

    @Philipp pretty sure pressuring foreign powers to investigate his political rivals is also illegal... but... here we are...

    @JeremyHolovacs I take it you're referring to the Mueller investigation seeking help from Ukraine and Russia to investigate Trump?

    @Pasha I know the answer! "Noon" is defined as the moment when the sun crosses the meridian (i.e., the line that goes due South from your location). So that definitely occurs, no matter what your clock might say on its display.

    @OscarBravo And I doubt then that noon is at 12:00:00.0 in DC

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Content dated before 7/24/2021 11:53 AM