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About The commoner. (Lincoln, Neb.) 1901-1923 | View Entire Issue (Nov. 29, 1912)
w NOVEMBER 29,. 1912 The Commoner. pi8!!i$sqp?WF!? When No President is Elected During tho recent campaign, Albert E. Pills bury, ex-attorney general of Massachusetts, wrote in Tho Independent the following: After the makeshift electoral commission of 1877 had cast the disputed presidency in favor of Hayes, an eminent scholar and publicist, referring to the fact that tho constitution makes no pro vision in certain contingencies for succession to the presidency, said: "Tho methods of the presidential election and succession are now tho only points in the constitution which can seri ously threaten the perpetuity of the union; in them, if anywhere, He concealed tho germs of disintegration and destruction." Events are impending which may again put a serious strain upon this historical weakest point in our frame of government. Various writers in the public press have called attention to the position of tho political parties in the two houses of congress, especially in the house of representatives, in view of the fact that if neither of the three presidential candidates secures a majority of all the electoral votes, the election of a president will devolve upon the house and of a vice president upon the senate. But none of them, so far as I have observed, has traced or perceived all the consequences which may follow from the present situation, without precedent in our political history, nor disclosed the most dramatic and disturbing of itB features. There can be no question but that it contains the seeds of possible mischief, and it ought to be fully understood, especially by congress, which alone has power to deal with it, while actual danger is yet afar off. By the electoral count act of Febuary 3, 1887, 24 Statutes at Large 373, the electors are required- to cast their votds on the second Mon day of January following the election, and the two houses of congress are required to meet and count 'the electoral votes on the second Wednesday in February thereafter. If it ap pears that neither candidate for president has received a majority of all the electoral votes, Amendment .XII of the constitution, which arose out of the Jefferson-Burr episode of 1801 and was substituted for the original olectoral scheme of Article II, section 1, requires tho house of representatives to "choose immedi ately, by ballot, a president." If the same failure of choice of vice-president by the elec tors appears, the amendment prescribes that "the senate shall choose the vice president," though without the injunction that it shall be done "immediately." The person so chosen by the house, if any, is president of the United States as completely as though chosen by the electors. In default of an election of president, the person chosen vice president by the senate, if any, "shall act as president," as in the case of any vacancy otherwise occurring. It is now familiar that in electing a presi dent the house of representatives votes by states, each state delegation having one vote, the choice being restricted to the three candi dates having the highest number of electoral votes, and a majority of all the states being necessary to a choice. Different and conflicting statements have been made of the party align ment of both the house and the senate. In what is perhaps the most elaborate discussion o the subject, by the editor of tho North American Review in tho September number, it is assumed that the delegations of Maine, Nebraska, New Mexico and Rhode Island are evenly divided between republicans and democrats, so that they might be unable to vote, and that of the re maining forty-four states, twenty-two detega- . tions are republican and twenty-two are demo cratic. According to late information, which ought to be authoritative, this classification is correct. It is, therefore, quite within the range of possibility, however unlikely it may be to occur, that neither candidate will be able to secure the votes of the -necessary twenty-five states, and that tho house of representatives will fail to make choice of a president if that duty devolves upon it. If neither presidential candidate secures a majority of the electoral votes, it is probable that each candidate for the vice presidency also will be left without a majority, whereupon the senate is to elect a vice president. But here the senators vote by the head, their choice be ing restricted to the two candidates having the highest number of electoral votes. The votes of forty-nine senators, being a majority of tho whole senate, are necessary to a choice. The political classiflcatioa of the senate is suffi ciently uncertain to make tho result in that body at least a subject of Interesting specula tion. It is understood that there aro nominally fifty republicans and forty-four democrats, with two present vacancies, in IHnois and Colo rado respectively, which may bo filled early in the ensuing year by tho incoming legislatures of theso states. At this point appears tho most remarkablo feature of tho situation. In the public discus sion of this subject it seems, so far ns I havo observed, to be universally assumed that in event of tho failure of tho house to elect a presi dent and of the senate to elect a vice president, tho presidential succession act of January 19, 188G, 24 Statutes at Largo 1, comes into opera tion and that tho secretary of state, or if thero bo none, tho secretary of war, and so down through the first seven cabinet officers in the order of their historical creation, would succeod as act ing president to the powers of that office. This is a mistaken assumption. This act provides for tho succession to tho powers of the presidency only "in case of removal, death, resignation, or inability of both tho president and vice presi dent." The event which we are contemplating is neither removal, death, resignation nor in ability, but a vacancy by failuro to elect. Tho term of office of the president and vlco presi dent is limited by the constitution to four years, and runs from tho fourth day of March, in virtue of the fact that the congress of the old confederacy fixed that day for tho first inaugu ration of President Washington, whereupon it was adopted into the law of 1792, which is still in force (Revised Statutes U. S., Soction 152), as the beginning of tho term. It follows from the statutory beginning of the term at the fourth day of March, and tho constitutional limitation of it to four years, that neither president nor vice president can hold over or exercise any of the powers of his office after that day. Accordingly, tho actual situation is that in default of a choico of president at the polls and of an election of president by tho house or of vice president by the senate, each office will become vacant on tho fourth day of March, and no clause of the constitution nor any existing federal statute provides for tho filling of either office. The executive power of tho United States, except such minor parts of it aB particu lar statutes have conferred upon the heads of departments or other administrative officers it is suspended and adrift, without any law pro viding for its exercise or for the choice of a person to exercise it. The succession act of 188C repealed the clauses of the act of 1792, which provided for the calling of a new election in such an event (Revised Statutes U. S., sections 147-150). pi'escriblng that the cabinet officer succeeding to tho powers of tho presidency, If congress is not then in session, shall summon It to meet on twenty days' notice, leaving the situation to bo dealt with by that body as best It may within such constitutional powers as it may hav for the purpose. But as this act does not come into operation upon a vacancy by failuro of election, there Is no existing law for calling a now elec tion or for summoning congress to provide for an election. It can not be denied that this conjunction of events, though doubtless so remote as to bo be yond the bounds of probability, would bo high ly Interesting if it should actually occur. It is reasonable to believe, indeed in view of what we have lately seen and heard of tho third term claimant it would bo difficult to bellevo anything else, that if and whenever it should occur he will be crying aloud that ho has been cheated of tho election, and that a largo num ber of people will believe him. It needs the addition of but one element to set the stage and furnish all tho paraphernalia of a revolution, and that element is supplied by tho circumstance that tho original creation and bosom companion of one candidate Is in command of tho army. Wo are accustomed to think that revolutions aro made of blood and gunpowder. It Is not so. Tho thing may be done, and has been done, without the firing of a shot. A revolution around tho corner, as It were, while the people are not looking, might be regarded as impos sible but for the fact that there aro just such events in recorded history. We have long been in the habit of regarding ourselves as exempt from the calamities that afflict and sometimes destroy other nations. This is only tho delu sion of ignorance. What has happened to others may, undor similar condition!), happen to us. I do not think, howovor, that thoro Is any occasion for excltoment or tho burning of red fire. Thoro aro sovcral reasons for this con clusion. First, failuro of election of a presi dent, both at tho polls and by tho houso of representatives, Is highly Improbable In the most unfavorable view, a change of position by less than half a dozen representatives, perhaps by two or three, would onnblo tho houso to inako an election. Still more unlikoly docs it appoar that tho sonato would fail to mako choice of a vlco president. Nolthor is thero at prenont any substantial reason for believing that tho commander of tho army would lend himself to an attempt to solzo tho prcsidnncy by force, nor that our army could bo mado tho instrument of so desperate an enterprise. Finally, and of moat importance, thero is In my opinion a constitu tional way out of such a difficulty, which may bo and ought to bo perfected in advanco of the ovent. Tho specific grants of particular poworo to congress, in soction 8 of nrticlo 1 of tho consti tution, aro supplemented in tho samo section by a general power "to mako all laws which shall bo necessary and proper for carrying Into execu tion tho foregoing powore, and all other powors vested by this constitution In the government of tho United States, or in any department or ofllco thereof." Omitting the words which are immaterial to tho present purpose, this clause may properly bo road as nn express grant of authority to congross "to mako all laws necessary and proper for car rying into execution all powers vostcd by thin constitution in any officer of tho United States." Tho ovent against which it Is necessary to pro vide is tho suspension of tho powors of the presi dent, through failuro to choose at tho propor time any person who may lawfully exerclso them and through lack of any standing law authoriz ing their exercise by any porson. This Is plainly a case for tho making of a uecessary and proper law for carrying Into execution tho powors vested by tho constitution in tho president, which seems to bo directly authorized by that clause of section 8 above quoted. It Is, so far as 1 know, unaccounted for and unaccountable that provision was not made in the succession act of 1880 against an ornorgoncy of this character, and others which might lead to tho samo result of putting tho presidency in limbo. The actual purpose of that act seems to havo been principally If not wholly partisan, though perhaps not more In tho Interest of ono party than of another. Tho act of 1792, In forco In 188C ns section 14 G of tho Revised Statutes, enacted under tho authority of section 1 of article II of the constitution, which declares that "tho congress may by law provide for tho case of removal, death, resignation, or inability, both of tho president and vico president, declaring what officer shall then act as president," pro scribed that in such event tho president of tho senate, or if none, the speaker of tho house of representatives shall act as president until tho disability is removed or a president elected. It was deemed anomalous and objectionable that tho powers of tho presidency should pass, In tho middle of a presidential term, to an officer who may be and often has been of tho political party opposed to tho president, thus changing the political character of tho administration without any action of the people. Tho succes sion act of 188C removed this objection by re pealing tho succession of tho president of tho senate and speaker of tho house and substitut ing succession by tho cabinet officers, and it ac complished nothing else. Public attention has been sharply called on moro than one occasion to this dangorous gap in the fundamental law especially In tho election of 1801, which exposed the weakness and led to tho abolition of tho original electoral schemo of tho constitution, again In connection with the election of John Qulncy Adams by tho houso of representatives In 1824, and in the Hayes-Tilden controversy of 1876. The hand-to-mouth policy of our national legislature in providing for tho day only what Is sufficient unto the evil thereof, leaving this menaco perpetually overhanging tho government, has been tho subject of severe and deserved criticism by political and historical writers at home and abroad, and goes far to justify the opinion that tho American congress, In view of the vast scope and magnitude of tho interests which it has in charge, its manifold sins of omission, no less than of commission, and its general incapacity to rise to tho level of statesmanship on the most important occasions, is the most incompetent legislative body in tho world. i i jk ,&afc3U JL-.