What happens when a sitting President of the United States refuses to admit defeat and leave office, following a clear electoral loss?
Greg Lovern
Updated Sun
The 20th Amendment to the US Constitution says “The terms of the President and Vice President shall end at noon on the 20th day of January…and the terms of their successors shall then begin”.
Even if Trump tries to use his authority to prevent the swearing-in ceremony from happening, he still automatically ceases to be president at 12:00 noon, January 20, after either losing the election in 2020 or finishing his 2nd term, and any orders he gave as commander in chief become void.
At that moment, the election winner becomes the new commander in chief of the US military. Even if Trump got all of his hardcore supporters to come to D.C. and riot on his behalf, he would still be forced to leave.
Though the Posse Comitatus Act prohibits using the Army or Air Force to enforce laws, there are exceptions listed in the act. One of those exceptions is the Insurrection Act. The Insurrection Act allows the president to “use federal troops to enforce federal laws when rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S”. The Posse Comitatus Act also says “Military support to civilian law enforcement is carried out in strict compliance with the Constitution and U.S. laws and under the direction of the president and secretary of defense.”
Although the election winner automatically becomes president at noon on the 20th of January, the constitution says he or she must take a certain oath before “the Execution of his Office”. That’s the oath that every president takes, usually under the guidance of the Chief Justice of SCOTUS, during the swearing-in ceremony. The exact words of the constitution are:
Before he [the president-elect] enters the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
(“So help me God.” is usually added at the end though not required by the Constitution.)
So at most Trump could perhaps buy a few extra minutes of time in the White House by using his authority to block the swearing-in ceremony. His orders would become void at noon, and then people could assemble for the swearing-in ceremony and proceed. But he would not be president during those few minutes. For those few minutes we would have a new president who was not yet authorized under the US constitution to “execute” the office of the presidency.
In the event of an emergency right after noon that day requiring an immediate response from a president having the authority to execute their office, the president-elect can be sworn in anywhere, by anyone with the appropriate authority. It doesn’t have to be the Chief Justice of SCOTUS, and it doesn’t have to be any particular place.
That said, the requirement of taking the oath before having the authority to execute the office seems like a relic of a very different time when events moved at a slower pace. Instead why not just require, for example, that the oath be taken within a day.
SO MANY PEOPLE HAVE ASKED A CERTAIN QUESTION IN COMMENTS THAT I’M GETTING TIRED OF COPYING AND PASTING THE ANSWER. SO HERE’S THE QUESTION AND ANSWER:
President Trump is an honest and honorable man who would never do such a thing. How could you possibly think he would even try to do that?
Trump (a) refused in 2016 to say that he would accept the election result if he lost, at a time when most including him believed he would lose, (b) does not believe or accept the results of an election he actually won (he insists he won the popular vote), (c) believes in bizarre conspiracy theories about the “deep state”, (d) expresses admiration for dictators and hints that the US would be better off with him as a dictator, and (e) shows contempt for elections.
He’s given us every reason to suspect he might not respect the 2020 election results if he loses, and not willingly hand over power. |
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