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.