A Trump-Rubio 2024 Ticket Could Spark a Constitutional Crisis
03/05/2024 19:50
One of the big remaining mysteries that makes the Trump-Biden 2024 rematch a bit less of a rematch is the identity of Donald Trump's running mate. And there are now regular signals from MAGA land that the 45th president has been steadily winnowing his initially long list of VP prospects. Word is that a small group of vice-presidential wannabes are finalists, and Bloomberg reports that major donors are getting very involved:
Donald Trump is sharpening his focus on a possible running mate by taking a page from his days hosting reality show "The Apprentice" and parading the top contenders for the slot in front of rich benefactors this weekend …
An exclusive donor retreat at the Four Seasons in Palm Beach this week promises a similar vibe — drawing hundreds of deep-pocketed GOP backers as well as allies eyeing the No. 2 spot on the Republican presidential ticket.
The spectacle comes as Trump is narrowing his gaze on a handful of potential running mates: Ohio Senator JD Vance, North Dakota Governor Doug Burgum, Florida Senator Marco Rubio and South Carolina Senator Tim Scott, according to people familiar with the deliberations as recently as this week.
If this really is the state of play, it's interesting that Trump has eliminated the many women who were for so long a big part of the veep speculation. Only one of them has fallen from grace for shooting a pet, so far as we know. Gender aside, the remaining prospects have various pros and cons, but the one who seems to stand out is Rubio, a donor and Establishment favorite who has sufficiently sucked up to Trump recently to overcome the unpleasantness of their encounters in 2016, when Trump crushed him in the GOP primaries. Little Marco, as Trump used to call him then, is relatively young (52) and telegenic. He's been in the public eye long enough to have some name recognition and prove there are no skeletons in his closet. Rubio is associated with some vaguely interesting ideas about catering to the GOP's white working-class supporters. And he's one of the nation's most prominent Hispanic politicians at a time when Hispanic voters could be Joe Biden's most crucial vulnerability.
According to The Bulwark's Marc Caputo, Rubio is eager for the gig:
The question is how badly Rubio wants to be Trump's vice president. Answer: bad enough. Rubio has already run for president, and would be a heartbeat away from the White House under a one-term president who's 77 and likes to eat McDonald's too often …
"Marco can almost smell the Naval Observatory," said a Trump adviser, referring to the official residence of the vice president, and echoing others who know Rubio, Trump, and the former president's vetting process.
There's just one problem with Trump-Rubio 2024. It's the 12th Amendment, which stipulates that the first formal step in determining presidential-election results is that "the Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves." According to the most common interpretation of this language, Florida's 30 electoral votes could not be cast for both Trump and Rubio.
So let's say the Trump-Rubio 2024 ticket wins somewhere between 270 and 300 electoral votes (which is entirely plausible; Trump won 304 in 2016 and Biden won 306 in 2020). Trump would become president, but if Rubio is denied 30 electoral votes, the vice-presidency would be determined by a vote in the Senate (as also provided by the 12th Amendment). Senators would get to choose between the top two electoral-vote winners, i.e., the Democratic and Republican vice-presidential nominees. If the Senate is still controlled by Democrats at that point, you could have Donald Trump taking the oath of office on January 20, 2025, alongside his vice-president, Kamala Harris. The mind reels.
There are potentially ways around the same-state prohibition in the 12th Amendment. Most famously, in 2000, when George W. Bush decided on Dick Cheney as his running mate, both were living in Texas. Cheney promptly re-established residency in Wyoming, the state he had lived in for many years and represented in Congress. Rubio is a sitting member of the U.S. Senate from Florida, a state that has always been his home aside from an interlude in childhood when he and his family lived in Las Vegas. Will he give up the Senate seat he has held since 2011, just two years into his third term? If so, where will he move? Back to Las Vegas? That's not clear, though it is clear Trump's not the one who's going to move in that situation (he's definitely not going to reestablish residency in New York, the state where he is allegedly being persecuted by evil Marxist prosecutors, judges and jurors).
There are theories surrounding the meaning of the 12th Amendment term inhabitant that might somehow allow Rubio to keep his Senate seat despite moving away temporarily, and at least one legal expert believes only Congress, not the courts, can enforce the 12th Amendment provisions against same-state ticket mates. Republicans could roll the dice by moving ahead and figuring it all out later. But if they guess wrong and federal courts decide the ban on electors voting for two of their "inhabitants" means what it says, you could again wind up with the Trump-Harris partnership, the worst situation since Aaron Burr became Thomas Jefferson's veep in 1801 (precisely the situation that led to the adoption of the 12th Amendment).
All in all, it's much safer if Trump goes with one of the many VP options that do not in any way risk a constitutional crisis. He's got enough problems in the legal system now — and if he wins in November, in quashing indictments — without inviting more trouble in the courts.
