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Jed Shugerman Profile picture
@jedshug
Dec 25, 2020 • 12 tweets • 4 min read • Read on X
I've been getting inquiries worrying that Pence will block the Biden electoral college win when he presides in the Senate on January 6th.
Don't worry.
Neither the 12th A nor the Electoral Count Act does not give him that power.
*Short* thread 1/
2/ The 12th Amendment merely designates the President of the Senate (the VP) to "open all the certificates." But then uses the passive voice: "the votes shall then be counted."
Implicitly, Congress does the counting.
The Electoral Count Act is more detailed on the count process.
3/ Sorry for the double negative in the first tweet.
I meant:
"Neither the 12th A nor the Electoral Count Act gives [the Vice President] that power."...
4/ Here is the Electoral Count Act, laying out the process for counting the Electoral College votes and any disputes. Note that the president of the Senate (the VP) has no speical role in resolving any dispute.
law.cornell.edu/uscode/text/3/…
5/ After there are objections to any state's slate of electors, the only way to override the certified electors is if BOTH Houses "concurrently... reject" that slate.
See 3 USC 15.
Dems control the House. That's simply never going to happen.
6/ The Senate isn't going to reject any slate either.
"But if the two Houses shall disagree...the votes of the electors whose appointment shall have been certified by the executive of the State...shall be counted." 3 USC 15

Governors already certified the Biden win, 306-232.
7/ Don't forget the Safe Harbor provision that the states all met in time and that legally protects the Biden win (306-232):
Certification by Dec 8th "shall be conclusive, and shall govern in the counting of the electoral votes." 3 USC 5.
law.cornell.edu/uscode/text/3/5
8/ Bottom line:
There is no secret legal maneuver left to stop a Biden presidency.
Pence & McConnell understand these rules & are in an awkward political position of their own sad making.
Any drama before or on Jan 6 will be merely a pathetic show of Trump loyalty/cowardice.
PS I just saw this @washingtonpost article on Pence and the electoral college by @jdawsey1 @ColbyItkowitz. I’m surprised they didn’t try to explain more precisely why Pence has *no legal power* to stop the ElectoralCollege. The word “evident” is too weak.
washingtonpost.com/politics/pence…
10/ I turned this thread into a blogpost for my anxious older relatives who don't use twitter but can read blogposts. Feel free to send it to your anxious older relatives:
"Pence Cannot Stop the Electoral College on January 6"
shugerblog.com/2020/12/26/pen…
11/ My mentor @backermanyale and my friend @proffontana wrote this article about how Adams in 1796 and Jefferson in 1800 counted electoral votes with formalistic problems (Vermont & Georgia)...
But there was no Electoral Count Act then.
scholarship.law.gwu.edu/cgi/viewconten…
12/ Moreover, the historical record does not suggest a substantive dispute over whether Vermont or Georgia intended the electoral votes to go to Adams or Jefferson, respectively.
1796 & 1800 simply are not precedents for Pence to defy the voters or the Electoral Count Act.

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More from @jedshug

Jed Shugerman Profile picture
Jul 21
This scare tactic - that the GOP will challenge any new nominee - is meritless nonsense, belied by Speaker Johnson's inability to specify any legal argument.
(See election law experts like @rickhasen in thread)

It tells you the GOP is desperate to keep Biden on the ballot. 1/
“I don’t put any credence into it,” says @RickHasen. “Biden is not the party’s nominee now, and states generally point to the major party’s nominee as the one whose name is on the ballot.”

Hasen is one of the nation's leading experts on election law.
sg.news.yahoo.com/bogus-wing-leg…
@rickhasen More here: Image
Read 23 tweets
Jed Shugerman Profile picture
Jul 15
I've read Judge Cannon's dismissal of the Mar-a-Lago case, ruling Special Counsel Jack Smith's appointment was invalid.

I am shocked but not surprised.

Clearly she was desperate to dismiss the Watergate case US v. Nixon & DC Cir. precedents in order to dismiss this case.
1/
2/ Cannon's decision is mostly statutory interpretation, not con law, ruling Smith's appointment does not have a statutory basis.

She doesn't rule directly on the constitutional issues, but she sneaks them in through "clear statement" rules, a now infamous Roberts Court move.
3/ I acknowledge the statutory basis for Smith's appointment is not textually obvious.
Judge Cannon actually does a good job explaining that the statutes that the DOJ relies on are not clear or leave questions.
But what do judges do when they have such doubts?

Read PRECEDENTS.
Read 17 tweets
Jed Shugerman Profile picture
Jul 1
Trump v. US thread.
Opinion below.
Bottom line #1: I agree that a Jan 6 trial cannot happen before the election (That was almost certain when the Court took this case)

But a great idea is floating:
Jack Smith can use evidentiary hearings as a mini-trial.
supremecourt.gov/opinions/23pdf…
2/ The Court remanded the case.
Commentators are overlooking the Court's emphasis on "presumptive immunity," rather than "absolute immunity."
See Chief Justice Roberts's concise summary at p. 6 below.

This presumption still opens a big door for trial court evidentiary hearings. Image
3/ The Court holds "absolute immunity" for "core constitutional powers" (p. 6 above).
But what are those "core" powers?

p. 8: "Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his 'conclusive and preclusive' constitutional authority."
Read 19 tweets
Jed Shugerman Profile picture
Jun 28
I'll be live-tweeting tonight's debate, to the extent that I can keep up and have the stomach for it.
🧵
1/ I note that Donald Trump has already lost the expectations pre-game, which may (or may not) be a big deal.
politicalwire.com/2024/06/27/mor…
2/ "A @nytimes Siena College poll found 60% of registered voters thought Trump would perform 'very' or 'somewhat' well in tonight’s debate. Only 46% said the same of Biden.
Overall, nearly half of voters anticipated a poor showing for Biden."
Low expectations. Maybe good news?
@nytimes 3/ I'm sorry this matters, but Biden has a frog in his throat, and even when he cleared the frog, his voice is flat and monotone. His answer on inflation is fine substantively, but the vocals are really not good.
His answer was good.
But he sounds weak.
Read 24 tweets
Jed Shugerman Profile picture
Apr 25
I'm tweeting now the Presidential Immunity argument (on a train to be on @CNN @andersoncooper tonight to talk about my op-ed below...)

Justice Barrett nicely pushed back on Sauer on notion a criminal law needs a clear statement to apply to presidents.
nytimes.com/2024/04/23/opi…
2/ From @RickPildes:
Trump's lawyer Sauer essentially conceded most of the case.
@RickPildes 3/ Barrett picked up on the Special Counsel's argument of the absurdity that crim statutes need a clear statement, if only a tiny number of statutes include (she said only three or so). Surely Congress did not mean for presidents to be broadly immune so generally from crim law.
Read 54 tweets
Jed Shugerman Profile picture
Mar 10
At @FedSoc National Student Convention, @NoahRFeldman is telling this audience that the formalist separation of powers & Scalia’s Morrison dissent are anti-originalist and dangerous…
And he’s crushing it. He is quoting Madison Federalist 47-51 and the audience is uncomfortable.
2/ You can watch it here:
@FedSoc @Harvard_Law
twitter.com/i/broadcasts/1…
@FedSoc @Harvard_Law 3/ @NoahRFeldman says the Constitution’s original structure is functionalism and “checks and balance,” not formal “separation of powers.”
I haven’t put the point this strongly, but my research shows he’s more right than wrong.
And more historically correct than Scalia.
Read 8 tweets

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