Antonin Scalia, that's Associate Justice of the Supreme Court Antonin Scalia, is dead. He has, as John Cleese pointed out (albeit in a different context), "ceased to be."
And so the cries go out, as they do whenever a Supreme Court Justice dies a suspicious death.
Something must be done.But what?
As usual, there is a split of authority.
The Democrats point to the Constitution (Hah! Take that!) which provides in Section 2 of Article II that the President
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.
The Republicans point to the Nullification Clause (secretly embedded in Article XVII and routinely relied upon by both Republicans and Democrats) which provides
not if we don't wanna.
After all, the Republicans say, the President has a four-year term. This is the last of his four years, and so he should not do anything and we won't let him because it is, after all, just a year before we get a new President, perhaps one to our liking. No fourth-year act should be allowed.
The Democrats, responding with equal lack of authority, say that because there's a full year left to the President's term, he has six months of authority left before he is officially stripped of all Presidential powers except posing for selfies with celebrities. (See Article XLIV)
So we have a classic Mexican stand-off. (Would-be-President Trump has announced that he will abolish those, of course, and make Mexico pay the cost of abolition.)
In reality, both Democrats and Republicans are wrong. From the day the President is inaugurated, the President is on a downward spiral. Certainly, the Pres is elected for a four-year term, but that term is already winding down on inauguration day. Why then, should we imagine that a President elected in one year but not taking office until the next ever acts in accordance with the will of the
people Electoral College? Why, indeed?
Wyoming says NO!
Clearly, the proper solution is to have any decision of consequence made by the President-elect on election day. That way and only that way can the will of the
people Electoral College be honored.
Oh, sure. The Constitution says that the President gets to do stuff. But that's the Dead Constitution beloved by the dead guy. How 2015! The Living Constitution adapted to the needs of a short-attention-span populace trained to 140 characters and fewer seconds than that, a populace that turns on its newly elected within moments (how appropriate for the age of the Apple Watch) that Living Constitution knows that Presidents are elected and, thus, President-Elect.