jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Getting the 25th Amendment on the Record
Sunday, October 01, 2017
Getting the 25th Amendment on the Record
Gerard N. Magliocca
On Friday, HHS Secretary Tom Price was thrown to the tarmac. This means that there are now two Cabinet vacancies, as DHS has been without a head since General Kelly left to become White House Chief of Staff. Cabinet secretaries come and go from every Administration, of course, but there is one special aspect of these vacancies in the Trump Administration.
If a Democrat is willing to toss this political mud ball in the guise of a question, the nominee could toss one back by proposing a new Nancy Pelosi standard for removable dementia. Alternative media has been following Pelosi's increasing mental lapses for some time now.
"with either buyer's remorse or seller's exasperation"
They think it should be invoked because Trump is "unable to discharge" his duties above and beyond some simple disagreement with his policies or basic abilities given their druthers. This in part was a result of seeing him in action, some hoping he would do a better job of it once actually in power.
Simple remorse or exasperation isn't involved here, putting aside the judgment that amendment only should be applied in an extreme case, particularly involving physical (or perhaps mental, like insanity) events. But, it's fine to toss that question in. I really don't think it likely to come up and the answer is likely going to be bland. So, this is as much as a thought experiment as the status of acting Cabinet members under that provision or regarding the line of secession.
"Personally, I think that nominating me is prima facie evidence that the amendment needs to be invoked" is not likely to be the answer. But these days you never know.
"Text can communicate express and implied meanings."
But self-proclaimed textualist SPAM sees a "political mud ball" regarding Gerard's suggestion concerning Section 4 of the 25th A. Perhaps we should consider "implied meanings" of said Section 4:
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, 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, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Let's focus on these words in the first paragraph:
" ... the President is unable to discharge the powers and duties of his office, ... "
The man Trump called "Rocket Man" came up with a Shakespearian "Dotard" standard in response as "Rocket Man" crossed several of Trump's "red lines." Recall a little history of pre-25th A with President Wilson.
Gerard's proposed question is a political mudball because there is no evidence Trump is physically or mentally impaired so that he cannot discharge his duties as POTUS and such a question falsely suggests that he is. If Trump were one of their own, no Democrat would even think about raising this issue just as they have not with Pelosi.
SPAM in his initial comment demonstrated [sic] his chops for Trump with SPAM's reference to Nancy Pelosi. While SPAM is a Juris Doctor, he is not qualified to diagnose Nancy or Donald. SPAM claims now " ... there is no evidence Trump is physically or mentally impaired ...." What is SPAM's evidence on his claim regarding Nancy? Obviously Trump is one of SPAM's own. And as to Trump, has SPAM been pulling a Rip Van Winkle going back to the beginning of Trump's 2016 campaign and in particular Trump's non-performance since Jan. 20, 2017? And has SPAM forgotten what Trump said during the campaign about the Cruz Canadacy that SPAM supported, with SPAM referring to Trum[ over and over as a fascist. Isn't there a tad of evidence that a fascist may be mentally impaired?
By the Bybee [expletives deleted], Pelosi will not be in the chain of succession until after the 2018 elections, so the Pelosi issue is irrelevant as is whether, based upon SPAM's history at this Blog, SPAM is mentally impaired.
But what is wrong with Senators being assured that a proposed cabinet member is aware of and understands the order of succession under the 25th A? I watched Treasury Secretary Mnuchin The Moocher on the Sunday political shows and he's 5th in line of succession. The Moocher responds 'bot-like in avoiding upsetting Trump.
If a Democrat asking a nominee a question concerning 25A standards is purely an educational exercise, why didn't they ask the question of Hillary Clinton in her confirmation hearings?
Gerard's suggested question has no other reason than playing the innuendo with Trump.
SPAM like Trump, his new idle [sic], share innuendo. Republicans did not ask Hillary. Rather, Republicans in Congress took steps to thwart America's first African-American President to a single term. Perhaps failing to do so fostered the election of Trump after Obama was termed out. But Trump's history going back to pre "Art of Deal" discloses more than a tad of narcissism. Consider President Trump's recent admonition of his own Secretary of State on wasting time on diplomatic efforts with NoKo, stating that he, Trump, knows what to do. It's "Dr. Strangelove" all over again.
Query: Would Melania or Ivanka play the Mrs. Wilson role if and when?
With Trump and Clinton as our POTUS choices and both party establishments betraying their voters, the United States is indeed in political purgatory. However, this has nothing to do with the 25A. Rather, we need to start discussing a convention of states to implement a constitutional reset of the Capitol.
The general understanding of the text here is that it applies to people like Wilson who because of some medical condition or such were unable to serve but was not willing to transmit control via the mechanism set up in Section Three.
I think the language can reasonably apply as well to those unable to serve because of events -- let's say being trapped in a cave and being incommunicado. Query, especially in the world of teleconferencing, how far "written" should be taken. I guess a selfie of a written proclamation could be accepted in cases of emergency. But, what if even that is not available? Section Four might serve as a backstop there.
The argument by a few here (and it isn't really realistically applied & GM himself was scornful of hopes like faithless electors "saving us") is that "unable to discharge" should be applied broadly. For instance, is being a "sociopath" enough? Totally unable (so the argument goes) to do one's job? etc. But, we are talking about the v.p. and the majority of the Cabinet (or another mechanism set up by Congress) deciding. The non-action of Wilson's VP is fairly predictive there, even if that was before the 25A.
Still, why not toss in a question regarding this in the questionnaire? It's technically a factor of the job.
A lot of people, (Sandy, for instance.) want to interpret "unable to discharge" so broadly as to encompass, "I don't like their policies.", or even, "Not the guy I voted for."
But I don't see any great harm in the question being asked.
Does a VP contemplate possible succession? Do others down the line? While the voting public might contemplate succession by a VP, how does the public think of succession down the line by particularly non-elected officials? Possibilities of mass killings call for the federal government addressing issues of succession, e.g., attendance at the State of the Union address. If certain events of succession were to occur, the public might then react regarding the result. Think back to when Gen. Haig thought he was in charge. Might a cabinet nominee high on the succession list be concerned with the possibility of being a target? Treasury Secretary Mnuchin, 5th in line of succession, sought an Air Force Jet for his honeymoon in Europe for security reasons.
Consider The Atlantic article "The Mind of Donald Trump" available at:
in addressing the issues of presidential succession under Section 4.
Query: Has Sandy expressed a view on Section 4 being applied to President Trump? I don't recall his having done so. Rather, Sandy's laments are with the inadequacy of the Constitution to address political dysfunction.
I believe Sandy has frequently questioned Trump's mental health. Do not recall if he ever brought up the 25A.
He has: https://balkin.blogspot.com/2017/08/why-impeachment-and-25th-amendment-are.html
He thought it somewhat lacking.
The post links to an article where he specifically suggests what a 25A test would entail: a finding if "he has exhibited sufficient symptoms of dementia or sociopathology to warrant displacement through the 25th Amendment."
Not merely disagreement with his policies or the fact his preferred candidate did not win. In fact, though SL does think Trump has symptoms of "sociopathology," the article notes "it would be a stretch to invoke it casually to rid of us of Donald Trump."
SL in fact prefers changing the Constitution to set up a "no confidence" option, which would be more open-ended, though again, merely disagreement with policies or supporting another candidate is not the grounds he raises. He supports a supermajority rule there so in reality something more would be needed in practice.
As applied to Trump, why impeachment is not adequate at this point is unclear, especially what we know now. Again, granting Sandy Levinson's judgment of the facts.
Here's the headings for Sandy's post that Brett linked to:
Monday, August 28, 2017
Why impeachment and the 25th Amendment are not sufficient safeguards against a truly terrible president
On review I'd have to say I was wrong.
While I think Sandy is confusing his dislike of Trump for trump exhibiting sociopathy, and in MY opinion genuine sociopathy would be adequate reason to invoke the 25th amendment, you're right: He did think it would be a stretch. (Perhaps he's aware at some level that his policy differences are driving the diagnosis?)
"As applied to Trump, why impeachment is not adequate at this point is unclear, especially what we know now."
Exactly what do we know now, that you think an adequate basis for impeachment? I can't think of anything that's actually known about Trump, as opposed to alleged, that would remotely qualify as a high crime or misdemeanor.
"Again, granting Sandy Levinson's judgment of the facts."
Not Brett's judgment of the facts. The matter has been gone back and forth in comments here & disagreement is noted. I'm not going to re-litigate.
If your goal is that the 25th Amendment ultimately be invoked, it is absolutely terrible, strategically, to ask this question.Post a Comment
Because the tendency will be for the nominee to give the narrowest possible answer, or at least one that articulates some specific test, and what you want is for the nominee to have freedom to act at a later date.
It's much smarter for pro-Trump REPUBLICANS to ask this.
Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
The Information Society Project
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