Things to Do in Dirksen When You’re Dead (Reprise)

In case you don’t get the reference, see here. Anyway, I have been meaning to write something about the 25thamendment for a while. This might seem like an odd time to do so, but there are distinct issues that may arise during the period between November 3, 2020 and January 20, 2121. So here goes.

The world’s leading expert (possibly the only expert) on the 25thamendment is Professor Brian Kalt of the Michigan State University College of Law. He has written a book called “Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment,” which you can and should buy on Amazon or wherever. (The numerical references in this post are to my kindle version of the book, which may or may not correspond to the hard copy). Even though almost everything I know about the 25thamendment I learned from Professor Kalt, I am not entirely in agreement with his take on it.

The key issue, for our purposes, relates to the meaning of the phrase “is unable to discharge the powers and duties of his office,” which is used in both sections 3 and 4 of the amendment. Under section 4, which governs the involuntary transfer of power from the president to the vice president, the vice president immediately assumes the powers and duties of the presidency as “Acting President” whenever he and a majority of the “principal officers of the executive departments . . . transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.”

Professor Kalt stresses that section 4 “was meant neither to cover policy disagreements, however intense, nor to rectify misuses of power by a foolish or ineffective leader.” (55) The legislative history of the 25thamendment shows that Congress “focused on past Presidents who had been incapacitated, and ignored Presidents who had been feckless or inept even in the most damaging ways.” (54) The garden variety case for an invocation of section 4 was a president in a coma or otherwise completely incapacitated or incommunicado.

On the other hand, the text of section 4 is clear that it is not limited to such situations. The provision expressly contemplates the possibility that the president and the vice president/acting president will disagree about whether the former was or remains “unable to discharge the powers and duties of his office.” In such eventuality, section 4 provides a process for resolving the disagreement. The framers of the 25thamendment therefore anticipated that a president who is both conscious and able to communicate in a coherent fashion will nonetheless be ultimately determined to be unable to discharge the powers and duties of his office. As one key member of Congress remarked during the debate on proposing the amendment, section 4 covers “the case when the President, by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand down.” (54)

Parsed closely, that quote raises more questions than it answers. It suggests that a president could be declared “unable” because he is “unwilling” to make a “rational decision” about whether to stand down, which seems rather circular. The larger point, though, is that the 25thamendment does not attempt to define with any precision the line between inability, on the one hand, and ordinary errors, abuses, ineptness or incompetence in the execution of the president’s office, on the other. Instead, the framers left it to the process they designed to discern where that line is.

Here it should be noted that the original proposal for what evolved into section 4, which was submitted by President Eisenhower’s first attorney general, Herbert Brownell, would have empowered the president to unilaterally declare himself recovered from whatever inability the vice president and cabinet believed to exist. (43) A revised proposal, submitted by Brownell’s successor, William Rogers, would have allowed the vice president and cabinet to challenge in Congress the president’s declaration of ability, but would have put the president back in charge during the interim. The amendment as it was adopted, however, not only permits the president’s declaration to be contested but keeps the vice president as acting president during the contest period. Thus, while Kalt is correct that the ultimate burden to uphold the vice president/cabinet determination is a heavy one (requiring a two-thirds vote of both houses of Congress that the president is unable to discharge his duties and powers), there is also an implied presumption in favor of that initial determination.

So what exactly does it mean for the president to be “unable to discharge the powers and duties of his office”? Despite the legislative history cited earlier, there would seem to be a difference between a president who is “unwilling” to discharge the powers and duties of his office and one who is “unable.” It would also seem that the president’s inability to discharge his powers and duties is not demonstrated merely by the fact that he sometimes does so poorly. To quote a hypothetical vice president invented by Kalt, the (hypothetical) president “can discharge his powers. He discharges them in a [expletive] way that is [expletive] the [expletive] country, but he’s not [expletive] incapacitated.” (121). One can imagine the current vice president saying something similar, though without the expletives.

At the same time the Constitution requires that the president take an oath that “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.” Article II further provides that the president “shall take Care that the Laws be faithfully executed.” If a repeated pattern of maladministration, violation of norms, and other bad conduct shows that the president is either unable to understand these duties or to conform his conduct to their requirements, it seems to me that the standard for invocation of the 25thamendment has been met.

To be sure, this would require the vice president and cabinet (and ultimately Congress) to make a subjective assessment about which reasonable people could differ. But that is what the text of the 25thamendment seems to contemplate. The primary protection for the president lies not in narrowly interpreting “inability” to be as close as possible to catatonia, but in the fact that (in Kalt’s words) “Section 4’s gatekeepers are among the people friendliest to the President.” (181)

My main difference with Professor Kalt is his tendency to conflate the political reality under section 4 with the substantive standard it embodies. As a matter of political reality, in order to invoke section 4 it is necessary to have (1) the vice president, who is a member of the president’s party and normally a close political ally, initiate the process to declare the president’s inability; (2) a majority of the cabinet, consisting of the president’s appointees, concur in the judgment of the president’s inability; and (3) two-thirds of both houses of Congress, which will ordinarily include a substantial number of members of the president’s party, also vote to sustain that judgment. The experience of the current administration amply confirms Kalt’s view that only in the most extreme cases are these things likely to happen with a non-catatonic president.

This political reality does not, in my mind, argue for a narrower interpretation of the substantive standard governing inability. To the contrary, if the people friendliest to the president believe that his mental or physical condition is such that he cannot or will not discharge the powers and duties of his office, it is not necessary (though it would undoubtedly be helpful) to have a diagnosis that he is “unable” to do so in a medical sense. Nor should the vice president and cabinet be deterred by the fact (as in Kalt’s hypothetical) that the president is capable of discharging his powers if they believe he is incapable of doing so properly and in accordance with his constitutional duties.

Let’s take a specific example of the president’s use of his constitutional powers. As we have discussed, President Trump has issued a number of questionable pardons during his presidency, but it seems clear that he has considered others (including for himself) that he has not granted. If, however, he loses the election this coming Tuesday, it has been suggested that he could engage in a “pardon-a-palooza,”giving pardons to associates involved in the Mueller investigation (such as Michael Flynn or Paul Manafort), other friends or associates facing criminal jeopardy (such as Rudy Giuliani), family members, celebrities, or a host of others. Fears that Trump will lose all restraint in the wake of an election loss are not limited to his political adversaries, but are sharedby a number of current and former officials in his administration.

There are a couple of objections that might be raised to invoking the 25thamendment in such a “Trump unleashed” scenario. The first is that the fact he was previously “restrained,” relatively speaking, shows that he is not “unable” to control himself, just unwilling. The second, somewhat in tension with the first perhaps, is that if Trump’s prior behavior did not trigger the 25thamendment, more of the same should not do so either.

The answer to these objections is that Vice President Pence presumably has a good deal more information regarding the president’s mental state than outsiders do. If Pence believes that Trump is capable of restraining himself, then conventional political threats (mass resignation by the vice president and cabinet, turning over information to congressional investigators or prosecutors) may suffice. But as a practical matter, the 25thamendment is the only constitutional mechanism that could stop Trump before he does something like issuing a blanket pardon to everyone in the states that voted for him (if not worse). And Pence is indispensable to initiating the process under section 4. The constitutional responsibility for Trump’s behavior in the transition period should fall primarily on the only person who truly has the power to do something about it.

Of course, Pence has shown no interest, at least publicly, in restraining Trump up until now. But if Trump loses on Tuesday, particularly if it is by a large margin, the political calculus of section 4 could change dramatically. Turning on Trump obviously could have political costs for Pence, but standing by while Trump engages in even more outlandish behavior might have even higher costs. Meanwhile, members of the cabinet would have little reason to support Trump over Pence. There is a critical mass of former senior Trump officials who would come out publicly in support of such a move, providing political cover for a majority of the cabinet to back the vice president.

Republican members of Congress would be in a trickier situation. But the timelines of section 4 are such that Pence could serve as acting president for much of the transition without Congress having to vote to uphold his determination. Moreover, the closer one gets to the inauguration, the less relevant a congressional vote would be. By the end of December, the vice president and cabinet could make a section 4 declaration and run out the time until January 20 without a congressional vote.

How else would you expect 2020 to end?

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