Trump PANICS as Nation CALLS FOR 25TH AMENDMENT!!!
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Quick Read
Summary
Takeaways
- ❖The 25th Amendment was adopted in the 1960s to address presidential disability and succession, notably after JFK's assassination and Eisenhower's health issues.
- ❖Section 3 allows for voluntary transfer of power (e.g., during surgery), while Section 4 outlines involuntary removal.
- ❖Involuntary removal (Section 4) is initiated by the Vice President and a majority of principal executive department heads, declaring the president 'unable' to discharge duties.
- ❖The president has four days to challenge this declaration; if challenged, Congress must vote by a two-thirds majority in both the House and Senate within 21 days to uphold the removal.
- ❖The term 'unable' is deliberately vague, allowing for interpretation beyond just medical incapacity, potentially including psychological or conflict-of-interest issues.
- ❖The 25th Amendment is not a substitute for impeachment; its purpose is to ensure continuity of government, not to punish a president for misconduct.
- ❖There is currently no 'other body' established by Congress to make inability determinations, as envisioned by the amendment, requiring a presidential signature and two-thirds congressional vote to create one.
- ❖The application of the 25th Amendment is largely a non-justiciable political question, meaning courts are unlikely to intervene in its process.
- ❖Transparency and proactive contingency planning within the executive branch and Congress are recommended to clarify procedures and ensure an orderly process.
Insights
1Understanding the 25th Amendment's Four Sections
The 25th Amendment, adopted in the 1960s, comprises four sub-provisions. Section 1 addresses presidential vacancy, Section 2 covers filling a Vice President vacancy, Section 3 allows for voluntary transfer of power by the president (e.g., for surgery), and Section 4 outlines the involuntary removal of a president due to inability.
Harold Koh details the four sub-provisions of the 25th Amendment, highlighting Section 3 for voluntary transfer and Section 4 for involuntary transfer of power. He notes Section 3 has been used multiple times for surgical procedures. []
2The Involuntary Removal Process (Section 4)
Section 4 of the 25th Amendment allows for the involuntary removal of a president. This process begins when the Vice President and a majority of the principal officers of the executive departments (not necessarily the entire cabinet) send a written declaration to the Speaker of the House and the President pro tempore of the Senate, stating the president is 'unable' to discharge their duties. Upon transmission of this letter, the president is temporarily removed from power.
Harold Koh explains the four-step process of Section 4: the Vice President and a majority of 15 executive department heads (8 out of 15) send a letter declaring the president's inability. This declaration immediately removes the president temporarily from power upon transmission. []
3Presidential Challenge and Congressional Role
After the initial declaration of inability, the president has four days to challenge it by declaring their ability to resume duties. If the Vice President and the majority of officers persist in their declaration of inability, the matter goes to Congress. Both the House and Senate must then vote within 21 calendar days by a two-thirds majority in each house to permanently separate the president from their powers.
Harold Koh outlines the subsequent steps: the president has four days to challenge the declaration. If the Vice President and officers persist, Congress must vote within 21 days, requiring a two-thirds majority in both the House and Senate to make the removal indefinite. []
4Defining 'Unable' and its Non-Justiciable Nature
The critical term 'unable' in Section 4 is deliberately vague. It can be interpreted narrowly as medically unable, broadly as any political inability, or as an inferred medical inability from circumstances. This ambiguity means the determination of 'unable' is largely a non-justiciable political question, unlikely to be reviewed by courts, ensuring flexibility for decision-makers during crises.
Harold Koh discusses three interpretations of 'unable': medically unable, a broad political standard, or inferred medical inability. He and Grady Short confirm that the question of what constitutes 'unable' is most likely a non-justiciable political question. [], []
5The 25th Amendment is Not an Impeachment Alternative
The amendment's primary purpose is to ensure continuity of government by addressing presidential incapacitation, not to serve as a punitive measure for misconduct. It is distinct from impeachment, which addresses 'high crimes and misdemeanors' and involves a different process and intent.
Harold Koh emphasizes that John Feerick, the 'founding father' of the amendment, did not intend it as a political punishment or an alternative to impeachment. Its noble purpose is to preserve continuity of government. []
Key Concepts
Rule of Law
The principle that all individuals and institutions are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. The discussion emphasizes the need for clear, unbiased understanding and application of the 25th Amendment to uphold this principle, especially in tumultuous times.
Continuity of Government
The principle that a government should be able to continue its essential operations under all circumstances. The 25th Amendment is framed as a critical mechanism designed to ensure this continuity by providing an orderly process for presidential succession or temporary transfer of power during incapacitation.
Political Question Doctrine
A doctrine in US constitutional law that holds that certain matters are not appropriate for judicial review because they are best resolved by the political branches of government. The application of the 25th Amendment, particularly the definition of 'unable,' is considered a non-justiciable political question.
Lessons
- Congress should establish clear rules and procedures for deliberations under Section 4 of the 25th Amendment to provide clarity in a crisis.
- The executive branch, including the president, should engage in contingency planning to define situations under which the 25th Amendment (especially Section 3 or 4) would be invoked, ensuring preparedness for incapacitation.
- Advocate for greater transparency regarding presidential health and potential incapacitation, encouraging presidents to utilize Section 3 (voluntary transfer) for procedures like colonoscopies to maintain an orderly process.
Notable Moments
The hosts and guests discuss how popular TV shows like 'The West Wing' and 'Designated Survivor' often misrepresent the 25th Amendment, leading to public misunderstanding.
This highlights a significant gap between public perception and the actual legal framework, underscoring the need for accurate educational resources on constitutional provisions.
The discussion references John Feerick, then a law student, who conceptualized the need for the 25th Amendment based on President Eisenhower's medical incapacitations before JFK's assassination.
This provides crucial historical context, showing the amendment's origins in practical concerns about governmental stability and the unexpected impact a law student can have on constitutional law.
Harold Koh mentions historical instances where presidents were incapacitated (e.g., Woodrow Wilson, Ronald Reagan with Alzheimer's) but the public was not informed, leading to unelected individuals effectively running the country.
This illustrates the dangers of a lack of transparency and the critical need for an orderly, constitutional process like the 25th Amendment to prevent unauthorized power vacuums.
Quotes
"Almost every time it was invoked on TV, it was done incorrectly, which meant that people were having discussion about an incredibly important provision of the constitution that could separate the president from his powers almost immediately and that they actually hadn't either read it or understood it."
"The controversial provision is involuntary transfer of power section 4. So when people talk about the 25th amendment, they're usually talking about section 4. Can the president be involuntarily separated from his powers?"
"The 25th amendment has a noble purpose, which is to preserve continuity of government, to make sure that there's always someone who is able. It's not designed to punish the person who for whatever reason experiences inability while serving as president."
"I think we shouldn't forget that the reason that any of these people have this power is that it's given to them by the people, right? We have popular sovereignty, the governed, uh, govern, uh, ideally."
Q&A
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