Find and Replace

Checks and balances. That phrase describes one of the most important aspects of the United States Government – undoubtedly born from a deep desire to avoid the tyranny that characterized British rule of the colonies before they declared their independence. Checks and balances are the way we try, as best we can, to avoid any one person or small group of people from gaining too much power over the course of the nation at any given time. But whether spoken or unspoken, purposefully or subconsciously, those in power are continually trying to defeat checks and balances, because, well… they know they’re right and everyone else is wrong. Most of us can relate to that.

A healthy tension between the three branches of our government generally means a healthy country. It may seem in that case like nothing ever gets done, but sadly that is often preferable to too many one-sided things getting done. The best breakthroughs in government happen when all three branches work together – and often that has taken shape as Amendments to our Constitution. The 25th Amendment is a good example: what do we do with succession of leadership in the executive branch?

Wonder what’s going on down there today…

The original Constitution did speak to presidential succession in Article II, Section 1, Clause 6:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.

There are a few areas of ambiguity there: it does not speak to succession of the vice presidency, nor to what extent or how long the Vice President retains the powers of the President. It also doesn’t define the range of conditions that would lead to “the Removal of the President from Office”. Impeachment, of course, is once such condition, but are there others? The ambiguities in turn led to a few periods of confusion in our history. When William Henry Harrison died in office in 1841, his Vice President John Tyler took over, and Tyler argued he was the President, not just the “Acting President”. Woodrow Wilson was secretly unable to fulfill his powers for the last several months of his presidency due to a stroke (this would seem unlikely to happen in today’s Twitter-driven society). And many vice presidencies have been vacated over the years, with no clear and consistent way of defining the replacement.

The 25th Amendment, passed in 1965 and ratified in 1967, has four sections that attempt to clarify the picture when a President or Vice President is “Control-X-ed”…

Section 1 clarifies the Harrison/Tyler conundrum – ok, fairly straightforward, and this was invoked when Gerald Ford took over for Richard Nixon in 1974:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2 extends the clarification to the vice presidency – again, fairly straightforward, and this was invoked twice – once when Ford assumed the vice presidency under Nixon after Spiro Agnew resigned, and again when Ford appointed Nelson Rockefeller as Vice President:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3 makes it equally clear how the President can confer his powers onto the Vice President when he or she agrees to be unfit for the office at a given time – this has since been invoked by Presidents Ronald Reagan and George W. Bush due to medical procedures:

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4 is where the Constitutional deuce hits the turbine – what if the President doesn’t want to go but it really is time? This has not yet been invoked:

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.

If you’ve been listening to the political dialogue over the past couple of years, there’s a good chance you’ve heard the 25th Amendment discussed, and the focus has been on Section 4. This is just another example of how high the tensions are between the parties and the branches of government right now – perhaps as high as they have been since the Civil War. In this polarized atmosphere, it is not surprising that the 25th Amendment has been raised, nor is it out of the question that it could even be invoked at some point. There have been, and there will be again, political leaders that refuse to go quietly. I’m not going to speak here about arguments for or against in the current situation. But we can probably all agree that an invocation of the 25th Amendment would create an even uglier Washington than the one we currently see. In many ways, the 25th Amendment touches the envelope of how far a democratic republic can be pushed. The question now is whether other forces will take us to that same place – and if they do, invocation of the 25th Amendment would only be the beginning of the story.

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