In the time since Joe Biden was declared the winner of the 2020 presidential election, the words and actions of President Donald Trump have raised fears that he might refuse to relinquish power.
While no individual in US history has ever attempted to cling on to the presidency after losing an election, the possibility of Trump being the first has raised deep concerns.
What happens if the President refuses to leave office? Is he forcefully removed? Does he stay in office? This article explores everything you need to know about it.
How Long Is a Presidential Term
The US Constitution explicitly spells out how the transfer of power works. Article II of the 20th Amendment stipulates that presidential terms run for four years, ending on January 20th at noon after an election year.
When does the president elect take office? Once the Chief Justice of the Supreme Court administers the Oath of Office to the President-elect, he officially assumes the duties of the position.
The Constitution further states that a president may be reelected to serve a second four-year term, but that’s it. No president can hold office more than twice.
This provision of the constitution has been upheld for more than 230 years, with presidents passing the presidential baton without acrimony. None has ever defied the results of an election.
The Constitutional Convention of 1787
The Constitutional Convention and Ratification was held in Philadelphia between May and September 1787. The purpose of the meeting was to address the issues that existed under the Articles of Confederation, specifically to do with the weak central government.
At the time, the federal government faced numerous challenges when it came to conducting foreign policy, mainly because it had no powers to enact or enforce laws, particularly those that individual states deemed to oppose their interests.
For instance, the 1783 Treaty of Paris, which was responsible for ending the American War of Independence, stipulated that all existing debts America owed to Britain were to be honored. It further stated that British loyalists whose property was confiscated could file suits in US courts to recover it.
As expected, these provisions were widely rejected, and many states refused to play ball. As a result, the British refused to vacate the military forts they had occupied in US territories.
Additionally, after the war, British goods flooded the American market to the detriment of American manufacturers and importers. The Confederation Congress did not have the authority to regulate this trade. Moreover, with individual states imposing their own import duty on goods brought in from anywhere else in the United States, the federal government had no power to stop this. As a result, the intrastate trade suffered.
There was also the issue of the Spanish Government, which at the time controlled New Orleans, barring American ships from sailing down the Mississippi River. Coastal merchants, particularly those in the northeast, were happy to make concessions in exchange for a treaty whose commercial terms were favorable.
The Confederation Congress’s southern delegates, on the other hand, wanted the ban lifted. The result? A deadlock between the North and the South.
The Way Forward
To resolve these issues, the Constitutional Convention presided over by George Washington, came up with a government model that relied on a series of checks and balances. This involved dividing federal power between the Legislative, Executive, and Judicial arms of government.
The idea was for all three branches to have an equal distribution of power so that no one arm of government would have more authority over the others. This exercise gave birth to the United States Constitution as we know it, which was adopted on September 17, 1787.
In recognition of the fact that at some point, changes or “amendments” would have to be made to address issues that may have been left out during the convention, the delegates came up with a list of requirements and methods to amend and ratify the Constitution.
25th Amendment Simplified
The 25th Amendment to the US Constitution stipulates what would happen to the presidency and/or vice presidency if they were to die, resign, or become incapacitated or disabled. Invoking it has always been a point of controversy, particularly Article IV, which allows for a president who is deemed incapacitated by injury or illness – including mental illness – to be removed from office.
This Amendment sought to address the question of – What happens if the president is too ill to serve his term in office, dies, or resigns.
The original Constitution allowed for the vice president to take over as acting president if such a scenario arose. However, its provisions were vague, and it didn’t address every possible contingency. Here’s how.
- It didn’t specify who had the authority to declare the president unfit to hold office
- It didn’t address whether the president could return to office after they recover from temporary incapacitation
- It didn’t specify whether the acting president was only limited to performing presidential duties until a replacement was found or if they should take over the Office of the President entirely
- It didn’t specify who would take over the vice presidency if the vice president were to die, become incapacitated, or become president
Presidential Succession Act
Congress passed the Presidential Succession Act in February 1792 to address those contingencies. It placed the Majority Leader and the President Pro Tempore of the House of Representatives and the Senate, respectively, in the line of succession.
This was the first of many changes that were made to address the presidential and vice-presidential succession question. Each administration was crafting its plan on how to handle the vacancies.
Fast-forward to January 1, 1965, when the 25th Amendment was enacted, two years after President John F. Kennedy’s assassination. It stated that:
- If the president resigns or dies, the vice president becomes president
- If the vice-presidency falls vacant for whatever reason, the president will nominate their replacement, who then has to be confirmed by a majority vote in Congress
- If the president becomes temporarily incapacitated, he has to write to both the Speaker and President Pro Tempore of Congress stating that he cannot perform his presidential duties and powers. The vice president would then serve as acting president until he notifies them otherwise. The president still reserves his right to return to Office
- If the Congressional Majority Leader and the Vice President write to the Speaker and President Pro Tempore of Congress stating that the president is unable to exercise his powers and duties, the vice president is immediately declared acting president
What Next
The Constitution, unfortunately, doesn’t address what would happen if a president attempted to stay in office beyond their term. The delegates at the Constitutional Convention of 1787 probably never imagined a scenario like that ever happening.
Lawmakers can generally use two avenues to remove a sitting president from office – the 25th Amendment or impeachment. Nonetheless, neither of these would apply since the president would technically cease to be president at noon on January 20, after an election year.
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