Why Trump Will Win The Wall Fight

Custom and Border Protection

Below is my column in The Hill newspaper on the litigation against the declaration of a national emergency by President Donald Trump in order to build his long-promised wall. Some members of Congress has said that they expect the House of Representatives to sue while private litigants have already filed challenges. Regardless of the litigants (and there are likely to be a mix of parties), they face similar barriers in convincing a federal judge to rescinded a declaration that Congress has not rescinded. This is a straight statutory interpretation case, not the “constitutional crisis” widely described by critics. There are possible claims against the funding conditions, but Congress gave the President not just the unfettered authority to declare such emergencies but the largely unconditioned appropriations that he may use to build the wall.

Here is the column:

Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to hell, I will help them. It is my job.” He was expressing the limited role of courts in challenges to federal law. It is not the task of judges to sit as a super legislature to question the agendas of the political branches. They will gladly send Congress to hell. It only needs to point to the destination.

In the matter of the border wall, Congress could not have been more clear where it was heading. It put itself on the path to institutional irrelevancy, and it has finally arrived. I do not agree there is a national emergency on the southern border, but I do believe President Trump will prevail. This crisis is not the making of Donald Trump. This is the making of Congress.

For decades, Congress frittered away control over its authority, including the power of the purse. I have testified before Congress, warning about the expansion of executive power and the failure of Congress to guard its own authority. The two primary objections have been Congress giving presidents largely unchecked authority and undedicated money. The wall funding controversy today is a grotesque result of both of these failures.

Start with the National Emergencies Act of 1976. Presidents have long declared emergencies based on their inherent executive authority. The use of that authority produced some conflicts with Congress, the most famous seen in the case of Youngstown Sheet & Tube Company versus Charles Sawyer, in which the Supreme Court declared that the federal seizure of steel mills during the Korean War was unconstitutional because Congress had never granted President Truman that authority.

However, Congress later gave presidents sweeping authority under the National Emergencies Act of 1976. While this law allows for a legislative override by Congress, the authority to declare national emergencies is basically unfettered. It is one of many such laws where Congress created the thin veneer of a process for presidential power that, in reality, was a virtual blank slate. At the same time, Congress has continued to give the executive branch billions of dollars with few conditions or limitations.

This is why President Obama was able to go to war in Libya without a declaration and fund the entire war with billions of undedicated funds. Neither House Speaker Nancy Pelosi nor most of the current Democratic leadership made a peep of objection at this. But when it comes to the wall, Democrats have indicated they will rely on the ruling in House of Representatives versus Sylvia Burwell, in which the court declared the House of Representatives had standing to sue over executive overreach and that Obama violated the Constitution in ordering the payment of billions to insurance companies without authorization from Congress.

I was lead counsel for the House of Representatives in that case. Ironically, Pelosi vehemently opposed the litigation as a frivolous and unfounded challenge to presidential authority. We won the case. Superficially, it may look like the wall controversy. Obama sought funds from Congress and, when unsuccessful, acted unilaterally. But Obama ordered the money directly from the Treasury as a permanent appropriation, like the money used to pay tax refunds. Congress had never approved such payments.

Conversely, Trump is using appropriated funds. Like the authority under the National Emergencies Act, Congress gave this money to the executive branch without meaningful limitations. Trump now has almost $1.4 billion in newly approved funds to use for border protection. He has identified about $8 billion in loosely dedicated funds for military construction, drug interdiction, and forfeitures. Even if a court disagreed with the use of this money, Trump has the power and funds to start construction of the wall.

Congress has yielded more and more power to the executive branch over decades. In many areas, it has reduced the legislative branch to a mere pedestrian in government, leaving real governing decisions to a kind of “fourth branch” of federal agencies. For their part, presidents have thus become more and more bold in circumventing Congress. When Obama gave a State of the Union proclaiming his intention to bypass Congress after it failed to pass immigration reform, Democrats applauded loudly.

Many of them, like Pelosi, denounce this unilateral action by Trump yet ecstatically supported the unilateral actions by Obama, including his funding of some critical parts of the Affordable Care Act after Congress denied any funds. Democrats insist Trump can be challenged on his use of emergency authority since they do not believe an emergency exists on the southern border. They will fail spectacularly if the case gets to the Supreme Court. While the source of funding can be challenged, there is no compelling basis to challenge the national emergency declaration.

The reason? Congress has never been particularly concerned over past declared emergencies, which have continued with perfunctory annual renewals. Most such emergencies are entirely unknown to the vast majority of Americans. Indeed, the first proclamation of a national emergency occurred under President Wilson in 1917, “arising from the insufficiency of maritime tonnage to carry the products of the farms, forests, mines, and manufacturing industries of the United States.”

Remember that national emergency over the “anchorage and movement of vessels” with respect to Cuba? How about the national emergency over uncut diamonds from Sierra Leone? Then there were the declarations over property owned by certain figures in Zimbabwe, the presidential election in Congo, and issues concerning Yemen, Burundi, Myanmar, Lebanon, Somalia, and South Sudan. All of these were “national emergencies.”

Curiously, Pelosi has called for the declaration of a national emergency to deal with the “epidemic of gun violence in America.” She also said that she wished Trump would add that declaration but that a “Democratic president can do that.” Yes, a Democratic president certainly could, and that is the key point here. Congress gave all presidents the power to make such declarations, and Pelosi is now making the case for Trump today.

While Democrats insist this emergency declaration is simply an effort to use executive power to get what Congress would not give Trump, any litigation would be an effort to use judicial power to do much the same thing. The House of Representatives would try to convince a federal judge of the merits against a wall, after failing to convince enough members of Congress to override the emergency declaration and a presidential veto.

That brings us back to Holmes. Congress has the authority to rescind the national emergency declaration of Trump with a vote of both chambers. The legislative branch should do so. If Congress cannot muster the votes, however, a federal judge is unlikely to do so. Simply put, the courts were not created to protect Congress from itself. Congress has been heading to hell for decades, and it is a bit late to complain about the destination.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

163 thoughts on “Why Trump Will Win The Wall Fight”

  1. Note even if you are a wealthy or live far from the border you could be a victim of crimes committed by illegals. Two acquaintences of mine were killed by illegals in two differnt states. ona a Sr VP of GM, was in Florida taking his parents home from dinner, he was hit by a illegal drunk driver and killed. When the cops released the driver an illegal he fled the country. No Justice. another awas killed in Colo and he was a retired VP of kimberly Clark. he stopped to get some things on the way home and walked into a robery by illegals. Not even Congressmen are safe. as for me and my extended family. I say: Build the wall…NOW!

  2. PS As to the Congress giving away power to the President, we do need a legal expert to define who’s power they are giving away and do they have the power to give away their Constitutional power. It seems to me that the proper role of the courts in this is to defend the Constitution and the American People, for who’s benefit it exists, not turf wars between the branches. Therefore precedents about what the Congress has already given up are irrelevant – what is the intent of the Constitution, not the Congress that happened to exist in 1976 when the Emergency law was written and approved?

  3. JT is apparently more interested in settling old arguments with Nancy Pelosi and other “I told you so” opportunities than reacting logically and on principal to the president’s purposeful end run around Congress and even the will of November’s voters, though the latter don’t have quite the same legal standing. “Obama did it” is tiresome as an excuse for forgiving “Trump’s doing it”, not to mention inaccurate. Obama did not take money specifically appropriated for other purposes, nor did he take actions not within the spirit of the executive branch’s obligation to make best use of funds to further Congressionally approved programs like immigration (which but for the Hastert Rule would have become law) and health care (the ACA). Trump is specifically taking funds the Congress approved for other purposes to use for actions Congress specifically denied him. This is not difficult and does not require a law professor to explain, though an accurate description of past and present events would help.

    On another note, will the Court help the Congress go to Hell, if that involves a constitutional failure on their part? If Trump wins this one because the Congress does not over ride his veto, does that 1976 law – written and passed by Congress – violate the constitution by requiring a veto proof majority for Congress to protect it’s constitutionally granted power of the purse?

      1. Ruthanns, that $150 billion was Iranian money that Jimmy Carter froze in 1979. It had been sitting in U.S. banks for almost 40 years. Anyone who can remember the Carter era, remembers when Carter froze that money. Yet right-wing media manufactured the tale that Obama simply had the Treasury print that money for Iran. Right-wing media dumbs people down.

        1. “Yet right-wing media manufactured the tale that Obama simply had the Treasury print that money for Iran. Right-wing media dumbs people down.”

          Peter, you lie as usual. The right side of the media released the full information that the left side of the media withheld. This is a form of “transference”. You are “transferring” your guilt to another person or side and you do that quite frequently..

            1. Jan, the cat was already out of the bag years ago so there is no need for the Washington Post to withhold or further spin this information today.

      2. The $150 billion was Iranian money some of which we had held since the revolution and others held as a result of sanctions. It was not money from the US Treasury.

    1. Actually Trump is not “specifically taking money appropriated for other purposes”, he is taking money appropriated for unspecified general purposes and deciding what purpose to specify it for. For example, military constructions could be used to put a wall around our Bagram base, or build an new military base or an airfield . . . . . or a wall on our southern borders to facilitate the efforts of our national guardsmen and federal authorities. The purpose of the money was not specified and the specification was deferred to the executive.

      Similarly Trump actually is endeavoring to “make the best use of funds to further Congressionally approved programs like immigration” in so far as he is building the barrier to facilitate actually enforcing the immigration laws of the United States.

      Trump is actually acting completely within the law. Your real issue is that you do not like the law he is enforcing. If Congress wants open borders, they should pass laws recinding our immigration laws. Faulting the President for enforcing long existent laws is absurd.

  4. Stupid tards, they’re so godammed stupid, they don’t even realize what just happened.
    Nothing new of course.
    God save our President!

  5. My goodness, things have changed since the 1940’s and 50’s. I recall wearing a pin “I Like Ike” to school.
    And as I had learned in civics class the President did not have a choice as to which laws to enforce. We were not a dictatorship nor a Monarchy where the leader gets to make law.
    Sadly, things have changed since then. Bit by bit.

    When there is an invasion it is a military matter. Period. Orders to our military: Secure our borders. — Commander in Chief.

    1. The Congress that does not vote the funds to secure the border must impeach itself for treason and crimes of high office. The Senate must convict that Congress or be impeached itself, only to convict itself. To abandon the border is to abandon the country is to commit the most egregious form of treason.

    2. The Other George:
      As humans have learned since the times of the ancient Greeks and their prize students, the Romans, government by the people works great absent existential threats. When that happens, the government has to perform its raison d’etre of defending the citizenry without the bindings and deliberations that democracy entails. Deciding just when the situation calls for that kind of decisive leadership is the real conundrum of democracy and many thinkers have postulated everything from strong rulers (Cincinnatus/Hobbes) to reliance on the populace’s fealty to natural law (Cumberland/Grotius/Locke) to pull through. None of the postulated theories are satisfactory for explaining what to do in that crucial moment before the barbarians reach the gates — the outside ones or inside ones. Therefore, prudent societies have accorded leadership great deference in deciding what to do and when to do it in the face of these threats understanding it involved great risk to personal freedom. We’ve been lucky that American leadership has been, in the main, benevolent and worthy of our experiment in freedom which you know is not the natural state of man. That said, the current crop of liberal leadership seems to adopt the mentality of your typical 17-year-old — entitled, indestructible and recklessness with others’ rights in gratification of their own emotional self-image. We’ve survived this climate before but the challenges are more threatening and sophisticated now, so teenage bravado might not work.

      1. I entirely agree. Thankfully, those of us who value country over party have identified the barbarian within and will endeavor to save our beloved country. The catchphrase as we eradicate the existential threat and Russian lackey that is the day glo bozo is: “what is that ticking sound?”

        to “I finally understand” mespo

        1. Mark M:

          I’m really not that complicated as my wife reminds me on a daily basis. I support the lawfully elected regardless of party as I did with Obama and now Trump.

          1. “What was wanted was not only a strong man, but one who was free to act, unshackled by the laws. He should therefore nominate Lucius Quinctius as Dictator, for he had the courage and resolution which such great powers demanded.”

            – Livy 4.13

      2. The early “democracies” were fundamentally sound as restricted-vote republics.

        Elected officials are only as good as the citizens entitled to vote.

        The American Founders knew that the “poor” would “sell” their votes, that age brought wisdom and that foreign allegiances would produce a “discordant intermixture” with “injurious tendencies.”

        Alexander Hamilton – The Farmer Refuted, 1775

        “The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”

        “If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”

        “The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.”

      3. the theory that explains what to do when there is no leadership, is simply, tribalism.

        the classic example is the Jews once Temple destroyed and enslaved by Babylonians. This collective tribal “will to power” to survive even if it took “transvaluation” of old morals into new ones, is explored in Frederich Nietzsche’s book “Genealogy of Morals”

        Anthropologist Sir Arthur Keith explored this territory too

    3. How are many, many,
      thousands of illegals forcing entry into my America not a national emergency??? So many fools in America. I used to wear an I like Ike button to school everyday also. In those days we had very few radical communists. Today we do have a national emergency.

  6. Well once again Jonathan has hit the nail right on the head.
    And by the way, I still say that without Congress, the president can easily execute title 10 USC section 284.

    1. JT is apparently more interested in settling old arguments with Nancy Pelosi and other “I told you so” opportunities than reacting logically and on principal to the president’s purposeful end run around Congress and even the will of November’s voters, though the latter don’t have quite the same legal standing. “Obama did it” is tiresome as an excuse for forgiving “Trump’s doing it”, not to mention inaccurate. Obama did not take money specifically appropriated for other purposes, nor did he take actions not within the spirit of the executive branch’s obligation to make best use of funds to further Congressionally approved programs like immigration and health care (the ACA). Trump is specifically taking funds the Congress approved for other purposes to use for actions Congress specifically denied him. This is not difficult an d does not require a law professor to explain, though an accurate description of past and present events would help.

  7. “Taxation Without Representation,” cried the American Revolutionaries.

    “Representation Without Taxation,” demand the anti-American Communists.

    44% of Americans, the communist parasites, pay no taxes for border walls or any other aspect of the American welfare state.

  8. From Forbes Magazine:



    In ground breaking research that has significant implications for U.S. policymakers and financial institutions, Peterson Institution for International Economics (PIIE) researchers found that “The Hispanic community in the United States has contributed significantly to US economic growth in recent decades and will continue to do so over the next 10 to 20 years.”

    Research Analyst Gonzalo Huertas and Senior Fellow Jacob Funk Kirkegaard, in their recently published working paper, The Economic Benefits of Latino Immigration: How the Migrant Hispanic Population’s Demographic Characteristics Contribute to US Growth, present an incredible diversity of quantitative analysis that proves that “The outsized contribution of Hispanic immigrants to US economic growth results from the quality of the workforce, not just quantity.” Moreover, in what goes against numerous unfortunate, negative stereotypes “Hispanic arrivals have exceeded contemporary native-born Americans and some other migrant groups in their entrepreneurial capabilities and integration into economically relevant parts of the workforce.”

    Given the growth of Hispanics in the U.S. workforce, they represent significant market opportunities for every type of financial institution, including banks, insurance companies, asset managers, and fintech. Unidos US, a non-partisan Latino civil rights and advocacy organization projects that in five years, Hispanics will account for about 20% of the U.S. workforce and over 30% by 2050.

    Huertas’ and Kirkegaard’s research shows that “the increase in Hispanic labor could contribute around 0.21 percentage points to annual real GDP growth in the United States over the next three decades if the Hispanic community catches up to the rest of the country in labor productivity.” By 2025, the increase in employed Hispanic labor could contribute more to US GDP growth than non-Hispanic labor.

    Huertas and Kirkegaard also found that Hispanics are the largest demographic group in new opportunity entrepreneurship. “While the US economy has exhibited gradually declining economic dynamism in recent decades, and the share of new firms being created each year has fallen in a trend accelerated after the Great Recession, foreign-born and Hispanic populations have become engines of US entrepreneurship, especially since the Great Recession.” The growth of the Hispanic population and the relatively younger composition of the Hispanic community are key factors driving entrepreneurship developments. Other factors, such as a decline in the historical gap between the Hispanic unemployment rate and the national average, would also contribute positively to this trend.

    “One issue that we raise, in light of higher opportunity-driven entrepreneurship rates,” said Kirkegaard “is that the Hispanic community needs ample access to financing and business services to facilitate growth of their businesses. It certainly would seem an obvious case where non-banks and fintech innovation could play a role.”

    Unfortunately, Hispanics, often struggle to obtain credit. According to Sabrina Terry, UnidosUS Senior Strategist of Economic Policy Project, Policy and Advocacy,

    “Entrepreneurs still struggle to access credit. They may end up at a predatory lender. If they cannot get a loan, they will end up with a non-bank with a loan with a much higher rate.” Part of the problem she explained, is that many Hispanics’ largest expenses, such as rents and mobile phone payments, often do not appear in a typical consumer credit report. “Financial institutions need to learn about other metrics, alternative data, to better understand the credit worthiness of Latinos and that show that they are responsible and can pay back their debt,” said Terry.

    Of great importance not only to Hispanics, but also to the whole country, Huertas and Kirkegaard found that “Hispanic high school graduation rates have risen from just over 60 percent to almost 90 percent in the last 20 years, reaching levels just below the currently historically high US average high school graduation rate of 93 percent.” However, Hispanics “have ground to cover to catch up with the US average in attaining higher education degrees.” Curdumí stated that “A definite common thread is Hispanics’ healthy respect for education regardless of where they come from or whether they are immigrants or born in the United States. This is acquired from parents who are willing to forgo everything as long as the children have access to a good education. We see that this high value on education continues to be passed on to the next generations.”

    Other important demographic factors for financial institutions are that Hispanics are having fewer children, which can mean, more disposable income for these individuals. According to PIIE, “even when the recent declining Hispanic fertility and net migration data is taken into account, the community will still account for the majority of the contribution to GDP growth from labor input in the future, a finding that underlines that it is important to continue fostering increased labor productivity among Hispanics. The continued numerical growth of the Hispanic community makes it imperative that their positive trend in educational attainment be sustained and strengthened to include the highest tertiary levels of education. Only then can the Hispanic community reap the full demographic dividend and convergence in wage levels be achieved.”

    Edited from: “Hispanics, Not Trump, Are the Biggest Engine Of U.S. Economic Growth”

    FORBES MAGAZINE, 2/11/19

    1. IS Peter Shill lying as usual? It seems that way because the article doesn’t contain his headlines: “UNDOCUMENTED IMMIGRANTS ARE ASSIMILATING PRESENCE LIKELY TO DRIVE FUTURE ECONOMIC GROWTH”

      Those headlines have no relationship to the article from Forbes that Peter is quoting. That makes Peter a liar and one that changes what article is actually saying.

      The article deals with hispanics NOT illegals and does NOT deal with assimilation as stated by Peter.

      How much more lying can anyone tolerate from this Shill?


        The Forbes story contains no asterisks distinguishing between ‘illegal Hispanics and legal Hispanics. It only refers to ‘Hispanics’ at large. That would mean ‘all’ Hispanics in the United States.

        Forbes titled the article: “Hispanics, Not Trump, Are the Biggest Engine Of U.S. Economic Growth” Said title should clarify any misunderstandings Allan seeks to instill. What’s more, by trying distort the thrust of this article, Allan demonstrates a glaring lack of integrity. He is desperate to defend Trump’s false claims on this issue.

        According to the Yale study discussed here over the weekend, the vast majority of undocumented immigrants entered this country ‘before’ 2008. A large ratio of those people are married to legal citizens and have American-born children. So they are already melding into the general population.

        So again, the Hispanics referred to in the Forbes piece are ‘all Hispanics’ in the United States.

        1. “The Forbes story contains no asterisks distinguishing between ‘illegal Hispanics and legal Hispanics.”

          What a piece of cr-p you are Peter. You are now blaming Forbes for not using an asterisks. You purposely lied and incorporated your rhetoric into an article from Forbes.

          The article was named:
          “Hispanics, Not Trump, Are the Biggest Engine Of U.S. Economic Growth” NOT

          You have been caught red-handed again and then try to shift the discussion to the Yale study that proved my number was more than credible and suddenly the number of illegals based on this study has nearly doubled or tripled 16-29 million. Even fools can note how untruthful you are.

    2. oh boy, let’s just hand over the keys to Mexicans now. NO THANKS!

      Dial 1 for English!

      1. Kurtz, what Peter put in capitals was a lie. The Forbes article said nothing of the kind. You have to be careful when reading anything Peter says because he will write things that you think he is quoting from an article.

        1. I have trucked with Mexicans aplenty in my life. I am blissfully away from them at present and enjoying it my leave of absence from any kind of social proximity. Unlike Peter who is in LA so he is basically surrounded by them.

          Also unlike Peter and most other guilty feeling white Americans I have ethnic preferences and I am not ashamed to act on them.

          I have a personal idea of what Hispanics I like and prefer. Of course I prefer, Spaniards. After that, I have had a lot of good experiences with Costa Ricans and Chileans. Mexicans are somewhere in the middle of the list and near the bottom would be those supposedly comprising the current caravans, which is to say, illiterate Hondurans.

          If anybody thinks the current caravans are bringing people even of the quality of the average Mexican, I got news for ya. NO WAY. Not even close. Trust me if the Mexicans don’t want them we don’t want them either. They will not “Grow the economy” they will grow social services.

          Which is why the Democrats want them! More demand for social services, bureaucracy, public interest this and that, NGOs, government, the usual hiring sectors for Democrats!

          1. I spent a lot of time in Mexico and found the Mexicans to be wonderful people. Their government isn’t so wonderful. I spent that time with both the elite and the poor Mexican. I feel bad that Mexico isn’t as good as it should be. It’s a bicoastal nation with plenty of resources so the average Mexican should be better off. We act as their safety valve for discontent.

            1. Mexico is a middle-income country. Real income levels therein are similar to those of the United States ca. 1941 and it has for nearly 80 years been gradually improving its position vis-a-vis the affluent occident. If all goes well could qualify as a 2d-rank affluent country in 40 years or so. It has a crummy civil administration and wretched quanta of street crime (though that’s much more severe in the northern part of the country than the southern part and some Mexican states are quite tranquil).

              1. Mexico has been under-performing its vast potential quite consistently for centuries. I would not pretend to know why. I am pretty sure it will not improve the US to import the lowest stratum of illiterate and unruly Mexicans into the US. Or, do so more than we already have? Although that has been great for Mexico.

              2. DSS: Yes, over the years the government changed for the benefit of the middle and lower class. Today they are faced with drug cartels that control many places and we see stories like this “Former Mexican president took $100-million ‘El Chapo’ bribe, witness says”. If true then maybe your numbers don’t count as much for the future. I would not travel in Mexico now for a number of reasons so I surmise that other people feel the same and hesitate to travel there as well. Tourism at least in the past used to be a money maker.

    3. this is the most preposterous notion. of course the author is a biased and self interested Hispanic

      author: Mayra Rodriguez Valladares


      I would say, it probably takes about 15- 25 Mexican migrants to equal the average net contribution to society of a Chinese or Vietnamese. If we are looking for contributing members of society by ethnicity, and the third world is our selection area, then go straight to Asia and probably bypass Central America and the Caribbean. Definitely bypass Africa.

      In the old days when people had sense, these kinds of evaluations were not that complicated.

      Today common sense is called “hate.” Well then sign me up for hate because I would hate to have to live without common sense!

      1. There is one thing I do really like about Mexicans. They have a lot of common sense like that, compared to white liberals at least, and are plenty aware of nationality, ethnic, tribal, racial, religion, etc, all the things we are supposed to ignore, which are nonetheless important social
        social differences, and not afraid to act on those perceptions.

        That’s mostly been “educated” out of Americans

  9. JT’s attempt to muddy the waters will fail in the end. Trump’s direct assault on checks and balances and to invent non-existent emergencies to get what he wants will fail too. The courts will find in the end that Article 1, Section 9, Clause 7 will hold.

    1. But Article II and the XII Amendment do not

      Got it.

      Its been enlightening as always


      “The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse [sic] by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse [sic] the President. But in chusing [sic] the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse [sic] from them by Ballot the Vice President.
      (Note: This procedure was changed by the 12th Amendment in 1804.)”


      The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

      The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

      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; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.[a]

      The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.[1]


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