12/02/00 11:20 a.m.
It’s Bush — Any Way You Slice It
When the Supremes rule.

By Mark R. Levin, president of Landmark Legal Foundation

eorge W. Bush will be the next president of the United States, regardless of what any court, including the U.S. Supreme Court, rules.

After Friday's hearing before the U.S. Supreme Court, I've been watching and reading one lawyer-pundit after another predicts how the high Court will rule. Several believe it will rule 5-4 "for Bush," i.e., that the Florida supreme court violated the U.S. Constitution and/or federal law.

Some commentators believe it will refuse to rule on the merits, holding instead that while there are federal issues raised by the Florida supreme court's ruling, the Florida legislature, and Congress are empowered to adjudicate them under the U.S. Constitution. (It has been my position for weeks that this is the only proper interpretation of the U.S. Constitution, although I don't pretend to know what the high Court will rule.) And yet another group of pundits contends, as do Al Gore's lawyers, that the U.S. Supreme Court will find no federal questions.

If the U.S. Supreme Court holds that when it rewrote Florida election law by judicial fiat, including changing the deadline for completing vote tallies and ordering recounts, that the Florida supreme court violated Article II, Section 1 of the federal Constitution (granting state legislatures the authority to appoint electors) and/or the 1887 federal statute (prohibiting, among other things, retroactive changes to state election laws that were in place prior to the day of the election), most, if not all, of the lawsuits brought by Al Gore throughout Florida will have to be dropped or dismissed. There will be no remaining justiciable issues since the secretary of state certified earlier Bush the winner and the contest period for challenging ballots will have passed. If Gore believes this is unfair, he has no one to blame but himself and the liberal justices on the Florida supreme court.

If the U.S. Supreme Court concludes that there are federal questions raised by the Florida supreme court's ruling, but that these questions can only be addressed by the state legislatures (which appoint electors under Article II, Section 1of the U.S. Constitution and federal law) and Congress (which sits as a legislative, quasi-executive and quasi-judicial body under Article II, Section 1, the 12th Amendment, and federal law), the Florida legislature and a majority of the state delegations in the U.S. House of Representatives are also controlled by the Republican party.

Therefore, the issue isn't whether the Florida supreme court's unconstitutional decision goes unaddressed, but whether the Republicans in the Florida legislature and Congress are committed to enforcing the federal Constitution and, thereby, ensuring that Bush is the next president. Of course Gore, the Democrats and the mainstream media will disparage this process and make it as politically difficult as possible. Joe Lieberman began the war of words the other day. The Democrats used these same political intimidation tactics two years ago in opposing the impeachment process. Hopefully, the Republicans will have the political will and the rhetorical skill to uphold and defend the Constitution.

Finally, if the U.S. Supreme Court concludes, as Gore argues, that there are no federal issues, the practical consequence will be no different than if it finds that federal issues were raised but they are political questions left for the Florida legislature and Congress. In other words, such a ruling will remind the Florida legislature and Congress that they are empowered under U.S. Constitution to set these electoral matters straight. Again, under this scenario, where Gore actually wins in the U.S. Supreme Court, he still loses the presidency.

I simply do not see any circumstances under which Al Gore wins the presidency unless, of course, elected Republicans fail to uphold the rule of law.