Sunday, January 24, 2010

The XXVth Option


(fm the BC thread "Magic")

How does the Constitution deal with a President who is incapacitated by injury (Garfield lingered for 80 days) or illness (Wilson was incapacitated for 17 months) or who is otherwise removed from office? The 25th Amendment was passed after JFK was assassinated. Sections 1 through 3 deal with vacancies in the office of President and Vice President and temporary voluntary transfer of presidential power. The meat is in 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.
In effect this allows the Veep with sufficient support to impeach the President subject to a later trial in the Congress. The grounds on which he can do so are more flexible than those granted to the House of Representatives in the original Constitution under Article II sect. 4. Look at the first sentence of the Amendment. It says that the Vice President can in effect temporarily remove the President with the concurrence of half the Cabinet or with the support of some other body that Congress may create. That second part is interesting. There is no restriction on what that body could be. It could be a committee of 6 State Governors or the 2 senior leaders of each party from both the House and Senate or for the paranoid it could be the top 3 officers of the Bilderburg or the Freemasons. Congress can give them the power and then they can install the VP as Acting President subject to a trial in that he would need confirmation by two thirds of both houses. It is easier to remove the President this way than to Impeach him under Article I but if he resists then it is harder to confirm the removal then to get a conviction in a Senate Impeachment trial. There is a movie script in this.

The scenario would be that the Cabinet is supine and unwilling to act against the President that they serve at the pleasure of. We will ignore any false precedent created by the Democrats complaining about Bush firing US Attorneys. So Congress can appoint a body that meets in a closet with the Vice President and orders the President removed. If two thirds of both branches of Congress supported the move, and it would only happen I think if that had already been determined, then the removal becomes permanent.

maineman,
(a clinical psychologist who diagnoses Obama as a sociopath)
Thank you for that sobering contribution. We all have to act carefully under the circumstances.

Given the poison that has been injected into the body politic, the hate and fear and the real economic damage, we must be ready for violent reactions if he does collapse or needs to be removed. I am very afraid of a long hot Summer in the cities.

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Geoffrey Britain,
he’d have to do something ... for that to fly, don’t you think?

Not necessarily, it is all up to how the politicians see their own interest.

Unlike the Article II standard for Impeachment of "Treason, Bribery, or other High crimes and misdemeanors" the XXVth Amendment standard of "unable to discharge" is completely flexible. Functionality and competence are in the eye of the beholder. If a man can be certified as a sociopath then even if he is outwardly functional the Congress can declare him "unable to discharge" the office. They can declare you "unable to discharge" the office on any grounds they want. No court will hear an appeal from the judgment of Congress in this case. If two thirds of the House and two thirds of the Senate are onboard, and if things get really bad then that is possible but I do not think it is probable, then the leadership they select will know that in advance. If that happens and they appoint a "body" to meet with the Veep then it could happen. Would they have to issue a report from some joint Judiciary Committee stating that eminent psychiatrists, psychologists and the head keeper at the National Zoo all agree that he is technically "nuts?" Sure they would and it would make as good a read as Lord Demmings Report. It would sell fewer copies then Kenneth Starr's report on Clinton but it might get read more. On the other hand they might produce a medical report stating that he suffers from some tragic hangnail but that gives him intermittent migraines so he can't answer the phone at 3 AM and therefore regretably can not be President.

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