A couple of brief comments regarding the vexed question of "What happens if...?"
1. Regarding whether there is a "President-Elect" prior to the electors casting their votes (your Phase I) I take the view that there is not. My own preferred nomenclature--which I realize has no legal or Constitutional validity--is "President-Presumptive." This follows the language of inheritance in which a distinction is made between "heir-apparent" and "heir-presumptive." Notwithstanding, I find it easier to use these terms as shorthand for what we clearly agree are two different states of "electedness" (totally a word!).
2. I am in general agreement with your views regarding Phase II. Until the actual electoral ballots are unsealed, counted and recorded in the joint session of Congress, they remain in a "quantum mixed state," since in fact we have no way of knowing what the electors actually did. So if the "President-Elect" were to die in Phase II, I expect the choice would devolve on the House. As a side note, prior to the election Republicans were in the majority in 26 of the 50 states: post-election, they have extended that to 30 delegations (presuming the flipping of Alaska's sole delegate survives the vote-transfer process).
3. Finally, and not to be too picky ;-) I would imagine that from a procedural standpoint, should Trump die after being formally elected during the joint session, the Office of the President would be declared vacant at noon on Inauguration Day when Biden's term ends, the office then devolving onto the Vice-President in accordance with the well-established protocol.
Have long wondered about the President-elect and the possible complications that office might face, if its holder or would be holder, encounters death along the way. Your explanation was very much appreciated.
Five policy areas left out: 1. Infrastructure--As of November 15, Biden has only managed to announce 47% of all Infrastructure Investment and Jobs Act funds. Trump disparaged the law back when it was a bill, but since much money has gone to districts on both sides of the aisle, it’s unlikely to be repealed. Trump will certainly slow down programs he perceives as too ‘green’ such as the Transit-Oriented Development program, and Elon Musk will certainly advise him to try discontinuing the Section 30D tax credit from the IRA to benefit solely Tesla (whether the Big Three’s lobbyists are powerful enough to block Musk is an open question). However, he might have enough vanity to take credit for the IIJA. Regarding FERC, Trump cannot appoint a Republican chair and thus change the party composition until mid-2026, when the Biden-appointed chair must step down according to statute. Expect continuity.
2. Labor--If Democrats manage to speed ahead with reconfirming Lauren McFerran to the chair of the National Labor Relations Board, and the SpaceX-Amazon complaint against NLRB’s constitutionality dies in district court soon, as is expected, Trump’s limited to meddling with the DOL’s rules, though bringing back his first-term rule on overtime pay would still be consequential.
3. Antitrust--Trump’s DOJ had more major antitrust enforcement actions per year than Obama’s, but elsewhere it had a very mixed record. Wall Street is surging ahead of an anticipated boom in mergers; it is very likely FTC chair Lina Khan and DOJ Antitrust Division head Jon Kanter will likely see their resignations forced.
4. Semiconductors--Speaker Mike Johnson wants it repealed, but Senator Todd Young of Indiana played a key role in crafting the CHIPS and Science Act, and if Trump accedes to bailing out Intel, which has new factories in Ohio, expect that state’s Senators to lobby Trump to keep the Act in place.
5. Aerospace--Expect Trump to block Earth science funding for NOAA and NASA, but maintain funding for the Artemis program for returning humans to the Moon as part of an anti-China narrative. Congress (particularly Deep South members) will likely protest against cancelling their public option Moon rocket, the SLS which is built by key constituencies, to Musk’s and Jeff Bezos’ dismay. Uncrewed exploration and aeronautics research are up in the air (pun intended), but expect some cuts.
"House Speaker Mike Johnson announced in a statement that “all single-sex facilities” on the House side of the Capitol are “reserved for individuals of that biological sex.” Rep.-elect Sarah McBride (D-DE), who will soon be sworn in as the first transgender member of Congress, called the policy an “effort to distract from the real issues” but said she would comply with it." I wonder what Mike Johnson would say if Sarah McBride started using the men's facilities? She might enjoy listening to some of the men's bathroom talk.
I'm responding after the Breaking News that Matt Gates just withdrew his Nomination this morning ☕ Good piece Gabe and will reStack ASAP 💯👍
Gaetz.
A couple of brief comments regarding the vexed question of "What happens if...?"
1. Regarding whether there is a "President-Elect" prior to the electors casting their votes (your Phase I) I take the view that there is not. My own preferred nomenclature--which I realize has no legal or Constitutional validity--is "President-Presumptive." This follows the language of inheritance in which a distinction is made between "heir-apparent" and "heir-presumptive." Notwithstanding, I find it easier to use these terms as shorthand for what we clearly agree are two different states of "electedness" (totally a word!).
2. I am in general agreement with your views regarding Phase II. Until the actual electoral ballots are unsealed, counted and recorded in the joint session of Congress, they remain in a "quantum mixed state," since in fact we have no way of knowing what the electors actually did. So if the "President-Elect" were to die in Phase II, I expect the choice would devolve on the House. As a side note, prior to the election Republicans were in the majority in 26 of the 50 states: post-election, they have extended that to 30 delegations (presuming the flipping of Alaska's sole delegate survives the vote-transfer process).
3. Finally, and not to be too picky ;-) I would imagine that from a procedural standpoint, should Trump die after being formally elected during the joint session, the Office of the President would be declared vacant at noon on Inauguration Day when Biden's term ends, the office then devolving onto the Vice-President in accordance with the well-established protocol.
Thank you. Very helpful!
Solid survey. Thanks for all the work here.
Have long wondered about the President-elect and the possible complications that office might face, if its holder or would be holder, encounters death along the way. Your explanation was very much appreciated.
Five policy areas left out: 1. Infrastructure--As of November 15, Biden has only managed to announce 47% of all Infrastructure Investment and Jobs Act funds. Trump disparaged the law back when it was a bill, but since much money has gone to districts on both sides of the aisle, it’s unlikely to be repealed. Trump will certainly slow down programs he perceives as too ‘green’ such as the Transit-Oriented Development program, and Elon Musk will certainly advise him to try discontinuing the Section 30D tax credit from the IRA to benefit solely Tesla (whether the Big Three’s lobbyists are powerful enough to block Musk is an open question). However, he might have enough vanity to take credit for the IIJA. Regarding FERC, Trump cannot appoint a Republican chair and thus change the party composition until mid-2026, when the Biden-appointed chair must step down according to statute. Expect continuity.
2. Labor--If Democrats manage to speed ahead with reconfirming Lauren McFerran to the chair of the National Labor Relations Board, and the SpaceX-Amazon complaint against NLRB’s constitutionality dies in district court soon, as is expected, Trump’s limited to meddling with the DOL’s rules, though bringing back his first-term rule on overtime pay would still be consequential.
3. Antitrust--Trump’s DOJ had more major antitrust enforcement actions per year than Obama’s, but elsewhere it had a very mixed record. Wall Street is surging ahead of an anticipated boom in mergers; it is very likely FTC chair Lina Khan and DOJ Antitrust Division head Jon Kanter will likely see their resignations forced.
4. Semiconductors--Speaker Mike Johnson wants it repealed, but Senator Todd Young of Indiana played a key role in crafting the CHIPS and Science Act, and if Trump accedes to bailing out Intel, which has new factories in Ohio, expect that state’s Senators to lobby Trump to keep the Act in place.
5. Aerospace--Expect Trump to block Earth science funding for NOAA and NASA, but maintain funding for the Artemis program for returning humans to the Moon as part of an anti-China narrative. Congress (particularly Deep South members) will likely protest against cancelling their public option Moon rocket, the SLS which is built by key constituencies, to Musk’s and Jeff Bezos’ dismay. Uncrewed exploration and aeronautics research are up in the air (pun intended), but expect some cuts.
"House Speaker Mike Johnson announced in a statement that “all single-sex facilities” on the House side of the Capitol are “reserved for individuals of that biological sex.” Rep.-elect Sarah McBride (D-DE), who will soon be sworn in as the first transgender member of Congress, called the policy an “effort to distract from the real issues” but said she would comply with it." I wonder what Mike Johnson would say if Sarah McBride started using the men's facilities? She might enjoy listening to some of the men's bathroom talk.
A very informative article. A good read to start my morning. Just my humble opinion of an old hermit.
AN OPEN LETTER TO MATT GAETZ
A Disqualifying Record of Misconduct and Scandal That Should End Your Political Aspirations
https://open.substack.com/pub/patricemersault/p/open-letter-to-matt-gaetz?r=4d7sow&utm_campaign=post&utm_medium=web