Laurence Tribe

Joe Biden has won the US presidential election, securing more than the 270 electoral college votes needed to win the race for the White House. Biden was projected by CNN, the Associated Press and other major news outlets, including the right leaning Fox News, as the winner of Pennsylvania on Saturday, taking his total to more than 284 electoral votes, above the threshold needed to clinch victory. But over the past few days, incumbent US President Donald Trump has repeatedly made it clear he won't consider a Biden victory legitimate...It's unlikely Trump will give Biden a congratulatory or concessionary phone call anytime soon, but what happens if he refuses to concede defeat? Following Saturday's announcement, Biden is expected to be sworn in as president at noon on 20 January 2021. At that point, Trump would become a private citizen with no authority or standing in the White House...Laurence Tribe, an American legal scholar and professor at Harvard University, said that regardless of what Trump says he will do, his "concession isn't necessary or even relevant". "The law is clear that the Joint Session of the new Congress that convenes on January 6, 2021, counts the Electoral Votes and designates the winner as the president-elect, who takes the oath as the 46th president of the United States at noon on January 20, 2021," Tribe told Middle East Eye. "Having been defeated, Trump will have no way to exercise presidential power after that point. Federal law makes it a crime for any private citizen to purport falsely to act as an executive officer. That law would apply to Trump, Pompeo, Barr, Mnuchin, DeVoss, and the entire Trump cabinet. Each member’s term ends no later than noon next January 20."

President Trump has made no secret of his intention to file legal challenges in key states where election results were close, citing the possibility of voting fraud. For months, he has criticized the nationwide expansion of mail-in balloting, a longstanding practice that gained ground rapidly because of social-distancing concerns during the pandemic. Trump filed lawsuits Wednesday to stop vote counts in Pennsylvania and Georgia, along with Michigan, shortly before the Associated Press said his opponent, former Vice President Joe Biden, had won the state. Officials are still counting votes in Nevada, Arizona, and Pennsylvania, which only started tallying more than 3 million mail-in ballots on election night...But scholars are not convinced there’s a plausible argument that the president’s legal team could make in these new actions that would prove successful in court. “There’s no claim I can think of that would shut down the counting of lawful, valid mail-in ballots in Pennsylvania,” said Harvard Law School Professor Nicholas Stephanopoulos, who studies election law...Though the president nominated hundreds of judges to the federal bench during his tenure, the courts aren’t likely to simply go along with the president’s demands, analysts said. “I think the very fact that the president has advertised that they are ‘his’ judges that he’s relying on to stop the counting both dares them to assert their independence in a way that is going to make it less likely that they will depart from what is a normal legal way of thinking about this and, ironically, undermines the effort he’s likely to make, [which is] to claim that Biden is somehow an illegitimate president because it will be Trump’s own judges who will be rebuffing his attempts,” said Laurence Tribe, Carl M. Loeb University Professor emeritus at Harvard Law School.

Donald Trump is fighting to hold on to the White House. If he loses, an outcome that is growing increasingly likely, the protections afforded to him by the presidency will vanish. His status as president has protected him so far, but Trump could be slammed with a pile of personal lawsuits should he fail to secure re-election. The businessman and reality TV star is likely to face a litany of potential criminal suits, ranging from emoluments to rape charges, if Joe Biden secures enough electoral college votes on Tuesday. Trump's biographer David Johnston has even warned that the incumbent could face jail time once he leaves the Oval Office... “There are likely to be many federal crimes that investigation following Trump’s departure from office would reveal – crimes involving federal income tax evasion, wire fraud, bank fraud, insurance fraud, money laundering, and campaign finance law violations," Laurence Tribe, a professor at Harvard University, told Middle East Eye. The New York attorneys on the case have filed a subpoena for eight years of Trump's taxes, which the president tried blocking multiple times. In July, Trump lost an appeal that ruled he is not liable to a subpoena from a state grand jury. Tribe said that "no presidential pardon could operate to shield Trump or anyone else from such state prosecutions".

Lawsuits over voter access and vote counts have already become a major battleground of the 2020 general election. If results are close, then post-election court rulings may be the deciding factor in whether Donald Trump or Joe Biden is sworn in as president next year. This past week the president said he wants courts to step in and prevent ballots from being counted beyond election night. The Trump and Biden campaigns ought to be on a level playing field in any court dispute, just as they should be at the ballot box. But what if the president wields the Justice Department as a sword to influence the courts’ decision-making? ... The first way Barr could co-opt the Justice Department to aid Trump’s reelection campaign would be by having the department directly intervene in any resulting litigation. This would be an unparalleled and deeply inappropriate action, but one that is not a terribly far leap from Barr’s current attempt to use the Justice Department to personally defend and protect Donald Trump. When asked about the possibility of such a court intervention, constitutional scholar Laurence Tribe, who served as a lead counsel for then-Vice President Al Gore in litigation over the 2000 Florida election recount, told us, “I would’ve been shocked and appalled to see Clinton’s DOJ weighing in during Bush v. Gore.” ... However, the extreme nature of Justice Department intervention in the issue might not be enough to stop Barr ... This would cause a variety of harms. First, having the Justice Department intervene would improperly aid the Trump campaign’s arguments in court, granting an added air of legitimacy and potentially tipping the scales of justice in what is supposed to be an even dispute between campaigns. According to Tribe, “the credibility, personnel, and financial resources of the department exceed those of any private attorney or firm, and the fact that it speaks in the name of the United States gives it enormous influence. Its arguments come with the cloak of official legitimacy even when its interests are in fact those of the incumbent president who seeks reelection.”

Don could run out of Teflon if he loses the election. Trailing in the polls a day before the election, President Trump faces the very real prospect of swapping the White House for the Big House. He’s directly implicated in campaign finance crimes and is under investigation by both Manhattan District Attorney Cy Vance and New York State Attorney General Letitia James for alleged fraud in his business dealings. On top of that, he faces civil defamation lawsuits from women accusing him of sexual assault...Harvard University constitutional law professor Laurence Tribe said the James and Vance investigations should be of “greatest concern” to Trump. The scholar, who advised top House Democrats during Trump’s impeachment, said it’s “almost inevitable” that the president will be criminally charged should he lose the election. “The investigations of greatest concern would focus on Trump’s seemingly criminal financial manipulations — bank and insurance fraud in knowingly falsifying his income, his wealth and the value of various assets,” Tribe said... “The degree to which post-presidential prosecution is discussed during the current election tells us that this has been a presidency so mired in apparent criminality, from the top on down, that just about everyone knows a major incentive for Trump to stay in office as long as he can is to exploit the Justice Department’s policy against indicting a sitting president,” Tribe said.

An op-ed by Laurence H. Tribe and Steven V. Mazie: After handing down orders in a spate of challenges to states' efforts to make voting easier during the coronavirus pandemic, the Supreme Court is catching its breath. But the pause may be short-lived. In several opinions that conservative justices have issued over the past week, a radical idea is rising from the ashes, resurrecting language from one of the most fraught decisions in the court’s history. Four justices — Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas — have resuscitated a half-baked theory three justices espoused in Bush v. Gore to let Republicans trash ballots after Election Day. Chief Justice John Roberts has not joined his four colleagues in this misadventure. But if the recently seated Justice Amy Coney Barrett sides with the quartet, America could be in for a battle that makes Bush v. Gore look tame. By shutting down a recount in Florida that could have put Al Gore over the top in the 2000 election, the Supreme Court effectively handed George W. Bush the keys to the White House. The majority reasoned that disparate methods for interpreting the infamous “hanging chads” on Florida’s punch-ballots denied the state’s voters the equal protection of the laws, violating the 14th Amendment. But then-Chief Justice William Rehnquist, joined only by Scalia and Thomas, would have gone further. In a concurring opinion, he scolded Florida’s Supreme Court for misapplying the state’s election law. He leaned on the electors clause of the Constitution, which says “each State shall appoint” its slate of presidential electors “in such manner as the legislature thereof may direct.” By meddling with what Florida’s legislature had done, Rehnquist concluded, its highest court had violated the Constitution.

President Trump has more at stake in this election than whether he remains in the White House. Holding the highest office in the land grants him effective immunity from federal criminal prosecution and gives him wide powers to stymie lawsuits against him and his business. That all changes once he becomes an ordinary citizen again. “Whatever shelters he has had as an occupant of the White House would vanish,” says Laurence Tribe, a constitutional law professor at Harvard and frequent Trump critic. “His ability to throw his weight around in terms of the deference that judges exercise—all of that is gone.” A federal prosecution of Trump would be political dynamite, and a President Joe Biden may choose not to detonate it. But a new administration could decide to revive Special Counsel Robert Mueller’s investigation into obstruction of justice by Trump or launch a new probe into the questionable tax deductions the New York Times revealed in a recent investigative report. Trump is also facing an active investigation by the Manhattan district attorney that could result in state criminal charges...Here are the major legal threats facing Trump, and how a defeat in November would affect them...Trump has long been able to argue that he’s too busy as president to deal with lawsuits, and courts have generally given him broad deference as head of the federal government’s executive branch. He would not get that deference as a former president and could be forced to sit for a deposition. Like Vance, James would probably find it easier to get information or cooperation from others. “The hesitation on the part of third parties who are the holders of potentially very incriminating information will evaporate once he’s no longer president,” Tribe says.

The almost certain confirmation of Amy Coney Barrett to the supreme court on Monday represents a “power grab” by Republicans facing possible wipeout at the ballot box, activists and analysts say. Republicans on the Senate judiciary committee shrugged off a Democratic boycott on Thursday to advance Barrett’s nomination to the full Senate, which will vote little more than a week before the presidential election. If confirmed, Barrett could be sworn in as a justice almost immediately. To critics, the rushed process represents one of the most naked power plays yet by a party which, confronting dismal opinion polls, is weaponizing unelected judges to compensate for setbacks in elections. Even as they contemplate the loss of political power, Republicans are poised to cement judicial power for generations...Laurence Tribe, a constitutional law professor at Harvard University, described Barrett’s probable confirmation as a “‘power grab’ in every relevant sense of the term, especially in light of President Trump’s open concession that he appointed judge Coney Barrett in part to ensure her ability to vote in his favour should his re-election as president end up turning on a case the supreme court would need to resolve in order to give him an electoral college victory in the face of a national popular defeat.” Trump has appointed more than 200 federal judges, likely to be his most lasting legacy whether he serves one term or two. Critics suggest the courts represent the last bulwark of Republican minority rule and the Barrett episode is starkly indicative of a party that has lost its ideological and ethical moorings and now treats power as an end in itself.

Democratic presidential nominee Joe Biden announced on Thursdaythat he would create a bipartisan commission to study the Supreme Court and federal judiciary because the system is “getting out of whack.” Biden expressed (as he has previously) his reservations about expanding the Supreme Court, but he did not rule it out...Constitutional scholar Laurence H. Tribe tells me, “I’ve strongly supported this bipartisan expert commission idea for quite some time. It accurately reflects the substantive difficulty of the issue — both for the Supreme Court’s institutional role and for the future of constitutional democracy writ large.” He continues, “It might well be true, as you implicitly suggest, that this announcement could empower the chief justice to hold his colleagues in check, but I don’t see that as one of its principal benefits or motivations.” Tribe concludes, “From my perspective, it’s a good way to avoid a premature decision that would suck up more oxygen than it should at a time when the management of the pandemic and the restoration of decency in government ought to be front and center.” Even if the commission does not come up with a solution that passes political muster, Biden is smart to at least try to reach consensus. If the Supreme Court goes on a tear and the commission comes up dry, Biden would then be in a better position to argue that expanding the Supreme Court is the only available option.

Barring a minor miracle, Republican senators will narrowly vote to confirm Amy Coney Barrett to the Supreme Court next week, just eight days before an election that likely will sweep many of their members and President Trump out of office. Leaving aside the prospect that Republican-appointed justices would try to “steal” the election for Trump, Congress will retain the power to protect Democratic policy preferences on several hot-button issues. And it can do so without adding seats to the Supreme Court or curtailing its jurisdiction. Take, for example, the Affordable Care Act. The ACA is before the Supreme Court only because Congress reduced the law’s individual mandate penalty to zero in 2017...Then there is gay marriage, which the Supreme Court by a 5-4 majority ruled is protected by the 14th Amendment in Obergefell v. Hodges. It is not clear whether the Supreme Court, after hundreds of thousands of Americans took advantage of the decision to get married, would sweep it away or invalidate current marriages. However, if it took that step, constitutional scholar Laurence Tribe opines, “In my view, Congress would have power to pass a Defense of All Marriage Act mandating recognition of other states’ marriages” under Article IV of the Constitution. Senate Republicans might seek to block such a measure, but Democrats could break through their opposition by getting rid of the filibuster. Finally, abortion is where we will see just how determined Barrett and her conservative cohorts are to pursue their social agenda. Roe v. Wade was decided in 1973; Planned Parenthood v. Casey, which established the undue burden test, was decided in 1992. If Barrett is as much of an activist, pro-life judge as she seems, she could well invalidate these decades-old precedents.

We live in an era of unprecedented political polarization, to the point where it seems unimaginable that liberals and conservatives could unite around any issue. Yet as a House Judiciary Committee hearing last Thursday illustrated, there are many conservatives who join liberals in arguing that we should strengthen antitrust laws against Big Tech companies like Google, Facebook, Twitter and Amazon — although they sometimes have very different reasons for wanting to do so. The House Judiciary Committee hearing was chaired by Rep. David Cicilline, D-R.I., who is in charge of the Subcommittee on Antitrust, Commercial and Administrative Law. The hearing, dubbed "Proposals to Strengthen the Antitrust Laws and Restore Competition Online," was a rare display of bipartisanship even though the two sides on some occasions still talked past each other. The hearing was also unusual because antitrust action is rare nowadays, a testament perhaps to how big business has essentially captured government. In general, the Democrats and Republicans seemed united in their desire to rein in big technology companies...As Salon has previously covered, President Donald Trump has used measures like Section 230 of the 1996 Communications Decency Act, which protects online platforms from being liable for the content posted by their users, to try to retaliate against social media platforms that he claims are hostile to him... "The threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment," Harvard Law professor Laurence Tribe told Salon by email at the time. "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

Angel Kai’s heart sank when she found out she was pregnant again. The 20-year-old had delivered her second child only three months prior...It turned out, though, that Angel couldn’t even afford the abortion she knew she wanted. Her health plan was offered under state-funded Medicaid, which, in Texas, only covers abortion in cases of life endangerment, rape, and incest...Before finding Fund Texas Choice, Angel had tried to get an ultrasound at a “crisis pregnancy center,” which is actually a coded name for an anti-abortion clinic. “They told me abortion is murder, and that I would go to hell if I had one,” Angel remembers now, a year later. “But I knew the abortion was the best thing for me to do.” Angel’s story could have looked very different. If she hadn’t learned about the fund, she may have not been able to get the abortion pill. Alternatively, if she lived in a different state, she may have been able to use her health insurance to pay for the abortion, at a clinic much closer to her house...The Supreme Court may get its chance to reconsider Roe v. Wade within the next year, according to multiple experts Refinery29 spoke to...And even if Roe is not overturned in one fell swoop, states could continue passing legislation that chips away at access bit by bit, and the Supreme Court could uphold those state laws, explains Laurence H. Tribe, university professor of constitutional law emeritus at Harvard. If Roe is dismantled, Sussman says that 25 million women of reproductive age live in a state where abortion would be banned. This is perhaps the most likely scenario: That a more conservative Supreme Court will first “hollow out” Roe until there’s almost nothing left. That could look like banning common procedures for abortion, such as Dilation and Evacuation, or even forbidding abortions after brain waves are detected, Tribe says. Right now, with the 17 abortion-related cases held up in federal appeals courts, the Supreme Court has what Tribe describes as a “menu” of cases, and they’ll get to pick and choose which to take. “They’re going to be looking for cases that will give them the maximum opportunity to do the most damage to Roe v. Wade,” Tribe says. “You've heard of death by a thousand cuts? That’s what may happen to Roe, after about a dozen decisions over the next three to four years.”

Much has been written about the threat Donald Trump’s Supreme Court nominee, Judge Amy Coney Barrett, poses to the right of women to control our own bodies. It is obvious that the rush to confirm her in time to hear the Republican effort to strike down the Affordable Care Act poses a threat to everyone with preexisting conditions. But is she also a threat to our Social Security? Acclaimed, nationally-recognized Constitutional law scholar, Harvard Law School Professor Laurence H. Tribe says yes, warning: “Don’t underestimate how much a Court remade in Trump’s image could dismantle. Even Social Security could be on the chopping block.” Similarly sounding the alarm is University of Florida chaired law professor and Harvard-trained Ph.D. economist Professor Neil H. Buchanan, who has written: “[O]ne of the most consequential results of Republicans’ theft of a Supreme Court seat could be to seriously undermine — or even declare unconstitutional — one or more of Social Security, Medicare, and Medicaid.” Coming from such knowledgeable sources, those are warnings all of us should take seriously. Because of Social Security’s overwhelming popularity among even self-described Tea Partiers, conservative politicians generally say that they love Social Security. But at candid moments, they make clear that they would like the courts to do what they have been seeking (so far unsuccessfully) to do sneakily, behind closed doorsand by “starving the beast”: End Social Security.

An op-ed by Laurence Tribe and Joshua Geltzer: There are many ways a future presidential administration could pursue accountability for Trump-era transgressions. Inspectors general at a range of federal agencies, the Office of Government Ethics, investigators and prosecutors at the Justice Department, or even some new truth commission might each lay claim to some aspect of what is sure to be a considerable task. Here’s who should stay out of it: the White House. The next president will face intense pressure to meddle in the quest for accountability, and he may be tempted — for good reason. Accountability for the Trump years is essential. Under President Trump, the government’s political leaders have abused their powers and the public’s trust in appalling ways, including for personal profit, political benefit and even sheer indulgence. The next administration must not, for our democratic future, treat Trump as having simply made some foolish policy calls or adopted some lousy legal positions. Trump is something worse: a president who has exploited the country rather than serving it; whose behavior in office has been corrupt, improper, unethical and possibly criminal. We need to know how it happened so we can stop it from happening again. But the whole point of such work is to get beyond politics. Political differences on, say, health care, foreign policy and immigration account for the ordinary swings between administrations of different parties. The White House drives those changes, because they represent the campaign platform that got the new president elected, and because it frequently takes White House leadership, even pressure, to steer the federal bureaucracy in a new direction.

Two hours before Donald Trump boosted the standing of white supremacists at the last Presidential debate, Facebook told Rashad Robinson, the president of the civil-rights organization Color of Change, that it would not remove a potentially incendiary and racially tinged Trump-campaign post. The message in question showed the President’s eldest son, Donald Trump, Jr., calling upon “an army” of Trump supporters to show up at polls across the country, to “protect” the election. The Black community, Robinson would later say, saw the post as a “threat to our ability to express our will for a better future.” But the company, which has become a de-facto arbiter of political speech, interpreted the takedown request as a matter of semantics; Robinson said that it quibbled over the meaning of “army.” Robinson recounted the experience at the launch, over Zoom, of the Real Facebook Oversight Board, an international, ad-hoc cadre of activists and academics convened by the British investigative journalist Carole Cadwalladr... “Our group has come together for one purpose,” Shoshana Zuboff, a Harvard Business School professor emerita and the author of “The Age of Surveillance Capitalism,” said on the Zoom call. “We demand comprehensive action to insure that Facebook cannot be weaponized to undermine the vote.” Jonathan Greenblatt, the director of the Anti-Defamation League, which has been tracking hate groups for decades, observed that Facebook “actively and knowingly has facilitated the flow of poison into the population, and enabled waves of anti-Semitism and racism, Holocaust denialism and Islamophobic conspiracies, disinformation and extremism.” The Harvard Law School professor Laurence Tribe called his participation in the Real Facebook Oversight Board “probably the most important effort in my fifty-year career in the law.” The Real Facebook Oversight Board is a self-appointed proxy for the official Facebook Oversight Board, which was designed to function as a kind of independent appeals court, adjudicating various challenges to the company’s decisions on whether to remove content.

In the lead up to Monday's confirmation hearings to install Judge Amy Coney Barrett on the US Supreme Court, Democratic presidential candidate and former Vice President Joe Biden raised concerns that the efforts to put Barrett on the court are unconstitutional and exemplify court packing. "The only court packing going on right now, is going on with Republicans packing the court now," Biden told reporters on Saturday. "It is not constitutional what they are doing." Facts First: This is false. Legal experts say there is nothing strictly unconstitutional about Barrett's confirmation process...Asked about Biden's comments, the campaign referred CNN to Laurence Tribe, Professor of Constitutional Law at Harvard Law School. Reached by CNN, Tribe said McConnell's decision to hold a hearing for Barrett despite refusing to do so for Garland goes against the Constitution's founding principles, but acknowledged the Republican-led nomination effort does not violate any specific article of the Constitution. In defense of Biden's claim, campaign spokesman Andrew Bates also added that "The structure and principles of our Constitution stand against this divisive and extreme power grab that Donald Trump and Mitch McConnell are carrying out in order to undo life-saving protections for Americans suffering from preexisting conditions. Ramming through this nomination after millions of Americans have already voted is contemptuous of the essential democratic structure that is the bedrock of the Constitution." "Most of what the Constitution forbids is not written down," Tribe noted. According to Tribe, Barrett's nomination process taking place before the election avoids consent by the governed, misuses the Senate's power of advice and consent, and violates the commitment to honor and decency he believes the framers intended those chosen to serve the American people must uphold. "The sheer power to appoint a Supreme Court justice when you've got the votes is not in question," Tribe said. "The question is what principles apply."

Amy Coney Barrett told a Jacksonville University audience in 2016 that the Supreme Court is unlikely to overturn a woman’s right to an abortion, the key holding of the landmark Roe v. Wade decision. However, Barrett has written law review articles that outline arguments attorneys theoretically could use in trying to strike down that ruling and other precedents, though the writings are analyses that don't urge specific action or say how she would decide specific cases. Among them: She cited legal experts who do not count Roe v. Wade among "superprecedents" – Supreme Court decisions that are so ingrained in American life that they can't be overturned. The potential for Barrett to join a 6-3 conservative majority that could erase the controversial 47-year-old ruling is expected to be one flashpoint during her Senate confirmation hearings scheduled to start Monday...If the Senate confirms Barrett's nomination, could she provide the legal impetus to overturn the ruling? Legal experts who have examined her writings and court decisions offer conflicting scenarios. "I don’t doubt that Judge Barrett would be more prepared to overturn significant Supreme Court precedents than anyone on the current Court other than perhaps Justice (Clarence) Thomas," said Laurence Tribe, a Harvard Law School expert on constitutional law who had a young Barack Obama as a law school researcher.  "Her writing on the subject is admirably candid even if shockingly unconservative," Tribe said. "She strongly believes that a Supreme Court justice who believes a prior decision, whether about the Constitution or about the meaning of an act of Congress, was wrong should feel free to overrule it without any substantial concern for the importance of stability and predictability in the Court’s jurisprudence."

Facebook announced on Tuesday that it is banning QAnon content across its platforms, an action that it characterizes as part of a larger effort to stop "Militarized Social Movements" from recruiting people through their social media sites. "Starting today, we will remove any Facebook Pages, Groups and Instagram accounts representing QAnon, even if they contain no violent content," Facebook explained in a statement. "This is an update from the initial policy in August that removed Pages, Groups and Instagram accounts associated with QAnon when they discussed potential violence while imposing a series of restrictions to limit the reach of other Pages, Groups and Instagram accounts associated with the movement." ... While many conservatives have taken to social media platforms like Twitter to accuse Facebook of violating QAnon's free speech rights, legal experts agree that the First Amendment only prohibits the government and its leaders from censoring individuals who disagree with them, not private companies. As Rick Hasen, a law professor at the University of California–Irvine, told Salon in May when Trump threatened to retaliate against Twitter for fact-checking two of his tweets, a private company like Facebook and Twitter is "entitled to include or exclude people as it sees fit." (Ironically, any actions undertaken by Trump to punish social media platforms he regards as hostile, legal experts like Hasen and Harvard Law professor Laurence Tribe agreed, would actually violate the First Amendment.)

Both of the two major parties' presidential candidates are septuagenarians; one of them, former Vice President Joe Biden, was recently in close proximity to a group of coronavirus-positive people, while the other, President Donald Trump, has contracted COVID-19 and is currently in the most crucial phase of infection. The two men's age, and their proximity to a disease that kills about 12% of those in their mid-70s and older, has prompted many outside observers and legal experts to be forced to confront the unthinkable: if President Donald Trump or former Vice President Joe Biden dies before Election Day — or after the election but before the Electoral College convenes — will America enter a constitutional crisis? ... Harvard Law professor Laurence Tribe, when asked what might happen if Donald Trump were to pass before Election Day, warned that things could get messy. "The likeliest outcome of the death you're imagining is that the Republican National Committee would convene in an emergency session," and, utilizing the best legal advice available to them, would "decide how best to accommodate their respective deadlines for qualifying candidates, or more precisely the electoral slates committed to particular candidates, for the presidential election to be held this November 3," Tribe said over email. This process would be complicated, of course, by the fact that millions of Americans have already voted by mail — and their ballots cannot be retroactively changed. To accommodate this, and since it would be "lunacy" to ask people to resubmit their ballots, "my hope would be that the state chapters of the RNC would all agree simply to revise the instructions given to the electors committed at that time to the Trump/Pence slate in each of those States so as to conform those instructions to whatever new ticket the RNC were to choose – say, [Vice President] Mike Pence and [former United Nations Ambassador] Nikki Haley." Yet according to Tribe, that might not be the end of the matter. He noted that some electors could declare that they are only legally bound to support a Trump-Pence ticket and, if they do not want Pence to be president, resign rather than be compelled to cast their ballot for him.

Watching the footage now, you can almost see the virus particles swirling in the air, an ominous cloud sprinkling the Supreme Court nomination ceremony in the White House Rose Garden, as Judge Amy Coney Barrett stands behind the podium and in her Jennifer Coolidge-on-helium voice tells Donald Trump that she’s “deeply honored by the confidence you have placed in me.” There they were, a mostly white crowd of Republicans packed together, shank to flank,  hugging, kissing, handshaking, close talking, backslapping, thumbing their exposed noses at the CDC’s social distancing guidelines. The overwhelming majority of attendees declined to wear face masks, including the guest of honor, her husband, and their seven young children...But how about her judgment? It’s “quite bad,” says Laurence Tribe, a constitutional law scholar at Harvard. Over the course of the past week, Judge Barrett has demonstrated “the judgment of someone whose eagerness to please her benefactor trumps (no pun intended) her concern for the health and even survival of others.” ... “Those hearings should be canceled,” said Tribe. “The idea of rushing this confirmation through at breakneck speed to fill the lifetime vacancy created by Justice Ginsburg’s recent death now that the election of the next president is not just imminent but already underway is little short of insane, especially in the face of the pandemic and in light of how the [Merrick] Garlandnomination was handled.”

It has been called a dead letter, an inkblot, the most important amendment in the Constitution. Although the Ninth Amendment was ratified in 1791, its history and purpose are contested to this day. It reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But what does this mean? How have the courts interpreted it? What does it say about the role of government in protecting our rights? Three distinguished law professors, Laurence H. Tribe, Randy E. Barnett, and Michael W. McConnell, take on these questions and more in Retained by the People.