Wampum

XXV Amendment

The National Enquirer is reporting that President Bush, an untreated alcoholic, is drinking again. Susie Madrak reports that the Enquirer contends that it has 2 sources for the story, that a major newspaper is also working on it, and that the Enquirer stands behind its reporting “150%.” Do I hear 200%? How about 1000%?

Some folks think the Enquirer is credible. Jack Shafer at Slate argues that the Enquirer gets its facts straight as a result of being defamation gun shy.

The Enquirer protects itself from suit, apparently, by paying large sums for dirt on celebrities. The existence of those bought and paid for sources, as opposed to some tabloids' habit of just making stuff up, protects the paper because it can prove that it had a basis for believing the story. That makes the actual malice standard (requiring proof that the defendant published despite knowing the information was false or that it was published with reckless disregard for the truth of falsity) of Times v. Sullivan hard for a defamation plaintiff to prove. Perhaps that makes the Enquirer a little more careful about litigious celebrities like Tom Cruise but Presidents of the United States are not in the habit of suing. The Enquirer has no reason to be gun shy about making stuff up about a President.

I have my doubts as to the truth of the allegation. It will take substantially more than a National Enquirer story for me to sign on to the idea that Mr. Bush is drinking again. I bring the subject up only because I have long felt that the Constitutional provision for dealing with a President who suffers from mental illness, senility, alcohol or drug abuse, or the like is woefully inadequate.

The Constitutional provision is contained in the Twenty-Fifth Amendment. It states, in pertinent part, as follows:

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.

I see a number of potential problems with that provision. First, it gives no guidance on the procedure to be used for Congress to make the determination as to whether or not the President is able to discharge his duties. Will a joint committee be appointed to hold hearings? Can it compel the President to submit to a medical examination? Can the Congress subpoena White House stewards to find out how much the President is drinking and when? Is the Congress empowered to question the President? If so, can he assert his Fifth Amendment privilege (say, as to questions about illegal drug use), or executive privilege, or spousal privilege?

How is Congress to determine if the President is incapacitated? Perhaps Congress should invoke its power under Section 4 to designate a panel of medical experts along with Cabinet members and/or others to assist in making the decision as to incapacitation. As it is, a group of politicians are charged with making what is, to some degree, a medical determination without benefit of medical evidence or advice. Perhaps Bill Frist can view a years old videotape of the President and make a diagnosis, but I would prefer something more formal.

Consider also that the Cabinet serves at the pleasure of the President. Assume some future President, badly afflicted with mental illness, is judged by the Vice President and the entire cabinet to be unable to discharge his duties. They write the letter to the Congress, thereby vesting Presidential power in the Vice President. The President then writes his letter informing Congress that no incapacity exists, thereby reclaiming Presidential power, and proceeds to fire the entire cabinet and their replacements until he finds people who refuse to sign the letter (think Nixon looking for an AG who would fire Archibald Cox).

If the President finds a sufficient number of toadies, are we stuck with a certifiably insane President for the remainder of his term?

New Cabinet members require Senate confirmation. Are we stuck with a crazy President until the Senate can confirm new cabinet Secretaries? What if the crazy president refuses to send up appointments for a long time? Does the requirement of a majority of the Cabinet mean a majority of Cabinet seats or a majority of filled seats? Can a crazy President keep power by making sure that there is never a quorum of the Cabinet?

As noted above, the amendment delegates the decision as to whether or not the President is able to discharge his duties to political actors (the Vice President and the Cabinet in the first instance, followed by the Congress). It will therefore come as no great surprise that the decision is likely to be highly political. That has the potential for great mischief.

Under Article III, Section 1, Clause 3 of the Constitution, in the event that no candidate receives a majority of electoral votes, the House of Representative elects the President and the Senate elects the Vice President. Thus, it is quite possible for the President and Vice President to be from different parties. If that ever happens, it is likely to be at a time of great political polarization, high emotions, and very hard feelings (think of the 2000 election on steroids).

Assume it happens. On inauguration day, the newly elected President may well be from a different party than the outgoing President, the Cabinet officers, the Vice President, and (probably) a majority of the Senate.

If the newly inaugurated Vice President and the outgoing Cabinet wrote the incapacity letter on the first day, and insisted upon it after the newly elected president asserted that he was not incapacitated, the Congress would be required to decide the issue. That is likely to consume the Congress for a time, thereby delaying the formation of a new administration.

If the President was found able, the Vice President and the Cabinet could repeat the process with the Senate refusing to confirm any Cabinet officer who refuses to sign the letter. We would then know what real gridlock is like. The obstructionist party may have to pay a political price but in these days of catering almost exclusively to the base, who is to say that the price would be too high?

That brings me to the Seven Days in May scenario. The current administration claims that the President has the right, unreviewable by any authority, to arrest and indefinately hold incommunicado any American citizen the President deems an “enemy combatant.” In the situation described above, if the Vice President of the opposite party from the new President, together with the outgoing Cabinet, writes the incapacity letter on inauguration day, the twenty-fifth amendment says that “Vice President shall immediately assume the powers and duties of the office as Acting President.” Those powers are restored to the newly elected President only when he "transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists.”

The new President may find it difficult to transmit that letter from a brig where he is kept under armed guard, provided with no pen or paper, and is not permitted to see or speak to anyone.

None of that is likely to happen. It is all farfetched. In writing the Constitution, though, we should concern ourselves with what is capable of happening, not what is likely to happen. After all, we have to abide by the Constituion even under worst people we shall ever elect.

We really should think through how the XXV Amendment works and plan for the worst case.

Posted by Dwight Meredith at September 24, 2005 01:17 AM