Tuesday, March 24, 2020

Continuity in Government: A constitutional fault line

Sandy Levinson

Gerard's post raises absolutely central questions that too often go undiscussed.  I note for the self-serving record that my wife and I, in the book we wrote together ostensibly for teenagers, Fault Lines in the Constitution, actually devote a full chapter to the problem of "continuity in government" under dire circumstances, including public health emergencies.  It is in that chapter that we discuss the technicalities of quorum requirements, for example.  Should 51 senators be isolated, for example, it would be impossible to meet the constitutionally-required quorum of a majority that is required in order to do business, not to mention the fact, as suggested by Gerard, that even if 51 senators could show up, that means, by definition, that only 26 would be needed in order to pass legislation.  That would presumably present a huge legitimacy problem, but, for better or worse, not a legality problem.

There was some discussion of the overall problem after September 11.  A blue-chip DC committee organized by both Brookings and the American Enterprise Institute met and wrote at least two fine reports, one of them suggesting a constitutional amendment that would address the problem of wholesale deaths or disabilities of the House and Senate.  In fact, I testified in front of a Senate subcommittee headed by Texas Senator John Cornyn, who, to his credit, took the proposal seriously.  It in fact went nowhere because Republican Rep. James Sensenbrenner of Wisconsin, the Chair of the House Judiciary Committee, hated the idea of non-elected representatives under any circumstances so he refused to hold hearings on the amendment (which would, under certain conditions, have provided for the appointment of replacement or substitute representatives).  That was in 2004.  It is now 2020, and we face the same "fault line" that threatens our constitutional order.

It is a grim fact that dead senators are no problem at all; they can, in most states, be immediately replaced by gubernatorial appointment.  That is not the case with dead representatives, since the Constitution requires that all representatives be elected.  That is no problem in the case of "retail" vacancies.  Who really cares if 430 instead of 435 members of the House show up on a given day.  Wholesale vacancies are another matter, obviously,  And both houses of Congress are equally afflicted by disabled members cannot do their legislative duties.

If they're truly disabled, then allowing absentee voting is no solution.  Someone in a coma or on a ventilator is not in a condition to cast a deliberative vote.  Someone simply in isolation can, of course.  Let me suggest that it is an insane reading of the Constitution to declare that all absentee voting is "unconstitutional," which some articles have suggested is Mitch McConnell's position.  Let me also suggest that anyone influenced by McConnell's own Schmittian approach to exercising his power over the past decade should quickly agree, apropos of Gerard's questions, that the Democrats should seize back the Senate the minute they have a majority of members on the floor because of the isolation or quarantine of a sufficient number of Republicans.  Only comity would suggest otherwise, and Mitch McConnell has indicated over and over again that he has no regard whatsoever for the norms of comity.  Those who live by the sword should be prepared to die by it.


I'm disturbed this actually has to be stated, but I'll say it:

You don't normally say, "I'm going to shoot you the moment I get that gun in my hand!" to the guy presently holding the gun.

Not, unless despite all your over the top rhetoric, you actually trust the guy with the gun to not shoot you even if provoked.

The general issue has been around for years.

It came up in the early years of the nuclear era as well. I'm currently reading Sen. Bayh's book on the creation of the 25A. Eisenhower's illnesses (Ike wrote a statement for the book) and JFK's assassination (LBJ also wrote a statement -- not a bad get for a relatively young junior senator) flagged the need for people of that era in particular.

The Constitution has a specific provision to deal, e.g., with presidential inability to serve & as I noted in a past thread, it seemed in theory the Wilson situation could have been handled more smoothly if the parties wished. The 25A clarifies some.


The first comment is back to concern trolling after you know calling me a liar etc. The last part has nothing about shooting people. As to how "over the top" such hardball tactics is, Brett is someone who is quite willing for the people he supports to do that if they have the power.


1. Sandy is not Charles Schumer, need not consider the tactical issue you raise.

2. I don't think that McConnell, the potential shooter in your analogy, is going to refrain from shooting if he thinks it advantageous to shoot, regardless of what his opposition says they might do, short of perhaps an actual physical threat.

The 25th Amendment is an outstanding example of a road not taken, in terms of addressing some truly serious problems, in an effort, presumably, to get the votes needed for proposal and then ratification. It ends up speaking to one and one issue only, i.e., presidential disability, and it doesn't in fact do a very good job of that inasmuch as what was being thought of was Woodrow Wilson's stroke and John F. Kennedy's shooting instead of the possibility of dementia or Alzheimers if we started electing unusually old presidents. As with the Impeachment Clause, the 25th Amendment turns out to be more of an albatross than a genuinely useful feature of a defective Constitution.

I'll be blunt: Every screw driver looks like a defective hammer to somebody who really just wants to pound on something.

There's nothing wrong with the 25th amendment, it simply isn't designed to enable the opposition party to remove a President they really hate.

I think the comment about the 25A is probably a bit harsh.

The 23A, e.g., was a watered down compromise that originally could have given more rights to D.C. residents. The 25A had a more narrow intent and reach. As to dementia or Alzheimers, the amendment would seem to be able to address that too. I think it might give a bit too much of a role to the vice president (the congressional body option still relies on the v.p there) but the original constitutional provision still might be able to address that to some extent too.

Anyway, I don't know how much of an "albatross" it really is.


"There's nothing wrong with the 25th amendment, it simply isn't designed to enable the opposition party to remove a President they really hate."

Move past the fictional assumption people merely "really hate" Trump for partisan reasons and try to focus on the possible problem of a POTUS who is incompetent but is propped up by a vice president who sees a benefit of a figurehead.

That IS the actual situation. Democrats really, really hate the idea that they lost the 2016 election, and were looking for any way whatsoever to undo that loss.

They tried suborning electors. They suggested that Trump's own cabinet might inexplicably decide to remove him, and that Republicans in Congress might go along with the gag. The started talking about impeaching him before he even took office.

The idea that Donald Trump won that election, and really is President, and will be until next January 20th at the earliest, and quite possibly four years longer than that, has driven a lot of Democrats to frothing madness.

The 25th amendment was no use in removing Trump, but that's not a defect in the 25th amendment. It's because the amendment's purpose is to allow medically incapacitated Presidents to be removed. And Trump isn't medically incapacitated.

A screw driver isn't broken just because you wanted to drive a nail.

Sandy Levinson left open a situation that the 25A might not address.

I noted how this can come up. How "nothing wrong" is an exaggeration.

You just want to "drive a nail" ... that is bashing Democrats.

Fine. Nevermind.

At some point one has to take Bircher Brett's complete lack of self-awareness* and his constant repetition of the same points that when challenged he hasn't been able to back up over and over** to mean that, like Bircher Bart, he's really just aiming to engage in a form of propaganda in service to his 'cause.' Or else he really is quite dim, and is like a chimp who knows somewhat how to wield a hammer and a screwdriver going to work on a broken Surface Pro.

*Any conservative that talks about Trump making Democrats into 'frothing madness' without acknowledging the conservative reaction to Obama's victory is just not even trying to have a serious conversation or lacks even rudimentary self-awareness. I mean, Birtherism, for starters, for crying out loud (the starting point for Trump politically!).

** How many times has joe asked Bircher Brett to list these important Democrats who "tried suborning electors. They suggested that Trump's own cabinet might inexplicably decide to remove him, and that Republicans in Congress might go along with the gag. The started talking about impeaching him before he even took office" with Bircher Brett being unable to offer much more (if that) than a handful of actually nationally relevant officials (in fact, the 'suborning electors' movement was, in my memory, often from 'Never Trump' Republicans).

The failed electoral-college rebellion bodes ill for future elections

"HE last-ditch effort by some Democrats to thwart a Donald Trump presidency ended in a fizzle on December 19th. The 538 members of the electoral college—the body that officially elects America’s chief executive, as ordained by Article II of the constitution—handed the real-estate magnate 304 votes, two shy of the total he was projected to win after the people voted on November 8th but a comfortable 34 votes more than the 270 he needed to win a majority. Mr Trump is set to be inaugurated as America’s 45th president on January 20th.

The ill-fated Hail Mary was lobbed by a number of liberal intellectuals, including Lawrence Lessig, a Harvard law professor and short-lived 2016 presidential candidate. In an opinion piece for the Washington Post last month, Mr Lessig observed that Hillary Clinton handily won the national popular vote. Since electoral-college electors are “citizens exercising judgment, not cogs turning a wheel”, they should feel free to ignore the popular vote totals in their home states. Electors should then stand up for the principle of “one person, one vote”, Mr Lessig suggested, and switch their allegiance to Hillary Clinton. Other advocates called on Trump electors to use their independent judgment to vote for another, more savoury Republican. If 38 electors would opt for the likes of John Kasich or Mitt Romney, Mr Trump would fall short of 270 and the House of Representatives would get to pick the president from among the top-three vote getters. The House would then be free to send a Republican other than Mr Trump to the White House.
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I won't belabor the point.

Note again that SL spoke not of "sociopaths" or some similar language he uses for Trump in response to my 25A discussion. He references "if we started electing unusually old presidents" -- both sides this cycle had leading candidates over 70.

So, I repeat, it would be helpful if the specific germane issue is addressed, not latching on to some longshot option by a few Dems (yeah it happened; no, it wasn't something any real sizable segment of the party seriously thought would happen ... mind you, by Brett's view of the Constitution, a person the likes of Lindsey Graham thought was a menace would be fair game for independent electors).

But, since Sandy wants us to remain on point, I will just shrug.

Lawrence Lessig?

Lol, when asked to produce a list of important Democrats behind the effort he constantly brings up this is what Bircher Brett has got? No Democrat elected officials, no major Democrat party officials, but a 'liberal' Harvard law professor who, when he floated the idea of running for office, was roundly mocked by very many liberals.

This is not a serious man.

I mean, there was an exponentially greater effort to disqualify Obama when he won in the Birther effort. And it was led by something more than the equivalent of, say, a Liberty or George Mason law school professor, it was led by...the future nominee of the GOP and later President of the United States from that party Donald Trump.

Every accusation is not just a confession, it's confession worthy of a lifelong lapsed Catholic whose suddenly seen the light after 70 years of prodigal son living.


To Sandys point: I think the worst inherent flaw in the 25th Amendment is the same flaw that exists in several places in the Constitution: it acts like party politics doesn't exist. So the problem with the idea of separation of powers or impeachment is that it works 'in theory' off of the assumption that the legislative branches would fiercely guard 'their turf' against the Executive. But with the advent of national party politics the President is often going to be the head, most visible, and often most popular face of the party that representatives and senators come from. With that being the case they have stronger incentives to not be seen as being at odds with the President than they do to guard their own branches prerogatives, and so checks and balances don't work.

The 25th has a similar naivety at work in that it fails to see that Presidents will pick 'yes men' loyalists for the Cabinet, and that being in the Cabinet will be the source of power for the Cabinet members, one granted to them via the President (sort of like how courtiers supported monarchs because the monarchy allowed them to have a higher place in society), and so Cabinet members will have a strong incentive to 'cover' for a demented or unfit President rather than try to remove him (and become unpopular, likely resisted by the other 'yes-men' loyalists, and removed from their post).

Definition of suborn

transitive verb
1 : to induce secretly to do an unlawful thing
2 : to induce to commit perjury also : to obtain (perjured testimony) from a witness

So now, in Brett's paranoia, public statements by some liberals - not Democratic leaders or offriceholders - including an op-ed column by Lessig urging Trump electors to vote for Clinton, have become attempts by "the Democrats" "to induce [electors] secretly to do an unlawful thing"

That's insane, Brett.

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The 25A was passed in the 1960s, so it is not like they were not aware of partisan politics and so forth. The President at the time (LBJ) was a prime partisan.

As things go, there was evidence of good faith (Ike worked with Nixon to work out clean lines if Ike was unable to serve & LBJ immediately followed a similar policy with the Speaker of the House; less so with Wilson though the Secretary of State tried to keep things smooth but that was known was the amendment was ratified, so the people behind the amendment were not working with naivete). Fiction at the time alone (Seven Days of May etc.) flagged the possibilities.

As to the concern about the Cabinet, who would be ideal here since not only are they confirmed by the Senate but present with the POTUS regularly so would be more aware than others of their status, the 25A provides a second mechanism as well to judge if the POTUS is fit. Congress has the power to set up another body. As with the original provision regarding disability leaving a hole that could have been filled better even w/o the amendment, some clarity here (such as disclosure rules to such a body) is possible.

So, my concern would be the VP since both mechanisms rely on the VP. But, since the VP is next in line, it seems like the VP would be involved regardless & it's tough to get around that. Plus, in this world, hiding the unfitness of a POTUS is realistically tough. We can imagine extreme cases but some other rule very well can have its own issues. As Ike said in his introduction, some unimagined scenario might arise, but the 25A covers a lot of ground.

BTW, reading Sen. Bayh's book, I see that Truman actually supported moving from the old rule of succession that transferred executive power to the Cabinet since he wanted it to go to someone wiht more popular support. The current rule of the Speaker being third in line is controversial, but has something to it. As to the Senate pro tempore, we need not just have the oldest member hold that role, especially if we had the possibility that the presidential power would go to that person.

"The 25th has a similar naivety at work in that it fails to see that Presidents will pick 'yes men' loyalists for the Cabinet,"

This isn't naivete. It's deliberate. You need to get people who are actually loyal to the President to agree that he's not up to the job. That makes it harder to remove a President using incapacity as a mere pretext.

If the decision were up to people who might be the President's political enemies, you'd see pretextual applications of the amendment, which they were determined to prevent.

They only wanted it to kick in if the incapacity was undeniable, not just an excuse. That's why it takes a supermajority vote of both chambers, harder even than impeachment, to invoke the 25th amendment if a President disputes it. So that it can't be used as just a way to overturn an election.

"So now, in Brett's paranoia, public statements by some liberals - not Democratic leaders or officeholders - including an op-ed column by Lessig urging Trump electors to vote for Clinton, have become attempts by "the Democrats" "to induce [electors] secretly to do an unlawful thing""

Not all definitions of "suborn" require that the effort be secret. Only that the action being encouraged be illegal. And being a faithless elector IS illegal under state laws. So, yes, there were multiple Democrats attempting to suborn faithless electors. Including Sandy.

"If the decision were up to people who might be the President's political enemies,"

Of course a partisan extremist can only think in terms of 'either this partisan loyal or this partisan opposed' could be the answer. The idea of, say, more or less neutral professionals doesn't exist in their cynical Jacksonian post-modernist world.

A more rational Amendment could, for example, have a commission of three health professionals, for example, make annual public recommendations or the decision itself. There is no 'Democrat or Republican' way to determine mental and physical incapacitation.

Let's comment on Bircher Brett's palpable dishonesty as a discussant. He makes this grand theory about Democrat derangement and conspiracy to get rid of Trump because they're upset/shocked he won. It stands in significant part on his claim that 'Democrats' which to have any meaning must be 'a lot of' or 'important' Democrats tried the nefarious method of trying to 'suborn' electors. When challenged, for the umpteenth time, to produce the evidence he produces...Lawrence Lessig and Sandy Levinson...Two college professors who might happen to be supporters (even registered?) Democrats? Lessig tried to run for the Democratic nomination recently and got about as much attention as a headline of 'Middle East peace talks stall again.'

Any honest discussant would be embarrassed that this is what they could muster. They'd say 'you know, I guess there wasn't much serious effort there. I at the least withdraw that premise and will try to rest on the others, and at best re-think this whole theory *and especially* the further extrapolations I'm making from it (that every subsequent event, even years after Trump's win, such as impeachment, are all rooted in this motivation).'

But Brett's not serious at all. He flung his propagandist poo, he couldn't provide much support, it was pointed out, and he's just going to ignore his missttep and hope we all do too.

I decided a while back not to keep this up. Non-serious discussants like Bircher Brett damage the otherwise fine discussion here with this propagandizing. I welcome, heck invite, serious conservatives to talk here. But I'm going to call out the non-serious ones every chance I get. No more passes.

"And being a faithless elector IS illegal under state laws."

Again more evidence of his unseriousness. Any serious discussant would mention that 1. only some states have these laws and 2. they are of questionable constitutionality.

But Birchers and propagandists are not trying to have serious discussions with careful thoughts/statements, they're flinging propagandizing poo and/or krazy kooky konspiracy theories.

Not all definitions of "suborn" require that the effort be secret.

Trying to get someone to do something illegal by writing an op-ed urging it seems like a strange and counter-productive strategy. It is almost implicit in the very notion that subornation be secret.

there were multiple Democrats attempting to suborn faithless electors. Including Sandy.

Attempts by some private individuals who are Democrats to persuade, in the public press, electors to do something unorthodox, but legal for at least many of them, is now subornation. Tell us, Brett, if a few Republicans did or said something, or urge some behavior I dislike, is it fair to say that "Republicans" tried to do this? Your constant generalization of what a few people do into the behavior of all your enemies is a ridiculous habit.

The 25A has this provision:

"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."

Mr. W.'s proposal would be of the "such other body as Congress may by law provide" variety. Let's again note that Sandy Levinson wrote generally was concerned "if we started electing unusually old presidents."

Since Wilson was incapacitated by a stroke or whatever that affected his mental and physical abilities, I'm not sure really the concern for dementia type symptoms flagged really amount to something different than was already planned for.

In fact there were more than a few 'Birther' lawsuits aimed at Obama. If there were a Bircher Brett left wing equivalent here they'd be going on about it as an attempted coup d'etat or some such silly hyperbole.

And again, Birtherism wasn't nearly as obscure as 'a Harvard law professor who garnered no support when he ran for the party nomination,' the current GOP President and nominee pushed it.

Again more evidence of his unseriousness. Any serious discussant would mention that 1. only some states have these laws and 2. they are of questionable constitutionality.

In fact, the Supreme Court took two cases to deal with just that concern.

"The petitioner in the Washington case, Peter Chiafolo, was elected as a presidential elector when Hillary Clinton won that state’s popular vote in 2016 but voted for Colin Powell instead, which led to a $1,000 fine for violating a state law that required him to vote for the presidential and vice-presidential candidates who won the majority of the popular votes. The respondent in the Colorado case, Micheal Baca, was removed as an elector after he attempted to vote for John Kasich, even though Clinton won the popular vote in Colorado as well."

The cases are scheduled for the end of April.

I'm inclined to uphold laws that bind electors (but think a case can be made otherwise) using text, history and so forth. Appeals to "Hamilton electors" based on never really put in place original understanding that only factored in part of the reason the system was set up this way only takes one so far.

Here's one article arguing the laws at issue are constitutional:

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