The next chapter of Constitutional Cliffhangers I’d like to present is Chapter 3, on the presidential disability provisions in the Twenty-Fifth Amendment. This is an unusual candidate for a cliffhanger for two reasons. First, one side of the constitutional debate seems to me to be clearly wrong, with no chance of prevailing in court. Second, the “repair” here is rather easier than in other chapters, requiring no legislation.
Here’s the scenario. See how many Caine Mutiny references/analogies you can spot:
Frances Philips is halfway through her second term as president. Her management style, which was always “hands off,” has become downright lax. She skips meetings, neglects decisions that need to be made, and shows little interest in being president. Some members of her cabinet and staff worry that she is clinically depressed, but — swayed by the increased power that comes with having a figurehead for a boss — none of them does anything about it.
Then President Philips starts alternating her periods of utter inertness with bursts of aggressive and arbitrary micromanagement. At a cabinet meeting, she rants for ten minutes about the use of blue pens instead of black ones. Next, without explanation, she announces that she is killing a carefully developed policy initiative in which she had previously taken no interest.
Several cabinet secretaries become convinced that the president is unable to perform her job. They start to discuss Section 4 of the Twenty-Fifth Amendment, which allows the vice president and a majority of the cabinet to declare the president “unable to discharge the powers and duties of [her] office,” and transfer power to the vice president. Crucially, though, Vice President Merrick opposes the effort. Although he worries that President Philips’s mental condition is deteriorating, he is reluctant to lead what could be perceived as a coup.
Things come to a head when war unexpectedly breaks out in the Middle East. After hearing the initial reports, President Philips paces in the Oval Office, muttering to herself but issuing no orders and taking no action. After several excruciating hours pass like this, Vice President Merrick has had enough, and he gathers the cabinet to file a Section 4 declaration. He is joined by a solid majority: eleven out of fifteen cabinet members.
President Philips is blindsided, but her chief of staff Tom Cooper (who Merrick erroneously thought would support the Section 4 declaration) is not. When Philips asks what her options are, Cooper reads to her from Section 4: if the president sends a counter-declaration to Congress that “no inability exists,” she can “resume the powers and duties of [her] office.” Cooper notes, however, that Section 4 allows the vice president and cabinet to reassert the president’s unfitness within four days, sending the matter to Congress for a final decision, and giving power to the vice president in the meantime.
With renewed focus, Philips executes Cooper’s plan. First, she signs a letter declaring herself fit and transmits it to Congress. Next, she summons the cabinet and addresses the eleven mutinous members: “If you don’t think I can discharge the powers and duties of my office, watch this. You’re fired.” Finally, she replaces them, naming eleven of her most trusted subordinates as acting cabinet secretaries.
In response, Vice President Merrick rallies the old cabinet, and he and the original eleven challengers sign a second declaration of Philips’s disability. Merrick claims that Philips has misread Section 4: Philips never retook power, her firings are invalid, the second disability declaration is valid, Merrick is the acting president, and Congress must now step in. Unfortunately, as advised by Chief of Staff Cooper, Philips refuses to back down. She says that she is in control, with the unanimous support of the “legitimate” cabinet, and that Congress has no basis to act.
The nation is in crisis. There are two presidents and two cabinets. The situation in the Middle East is spinning out of control, and nobody knows for sure who the rightful commander in chief, secretary of state, and secretary of defense are. Congress assembles while dueling sheaves of legal pleadings and memoranda flood the federal courts.
President Phillips and her chief of staff are clearly in the wrong here. The problem is that Section 4 is written in a way that allows them — in the heat of this tense situation — to misread it. In the chapter, I talk more about how their misreading could happen, including instances of smart people making the same mistake.
Part of the problem is that the main source of clarity is the legislative history: a statement in response to one of those smart people making the same mistake. Later in the chapter, it leads to this exchange:
White House Counsel Keith: Madame President, the legislative history of Section 4 is clear as a bell. You do not get to come back until this goes through Congress, unless the cabinet went four days without re-challenging you. But the cabinet did re-challenge you. I’m sorry, Ma’am, but Vice President Merrick is in charge and you cannot fire anybody.
President Philips: [Expletive] the legislative [expletive] history, [expletive] Merrick, and [expletive] you, you [expletive] traitor [expletive]!
The drafters of the Amendment operated in an era in which legislative history was assumed almost to be part of the text. There is a striking (unrelated) passage in the legislative history in which Senator Bayh states that the legislative intent is that the amendment be construed as if a passage that had appeared in an earlier draft was still there! But mistakes are most likely to be made in precisely this sort of situation, in which tensions and stakes are extraordinarily high, and there are powerful incentives pushing the president and some of her staff in this direction.
Consider the immediate aftermath of the shooting of President Reagan in 1981. The administration was unprepared to discuss transferring power, and “the men gathered in the Situation Room [did not] know what action they were authorized to take or expected to take.” Away from the White House (and to no effect), lawyers in the Justice Department studied the legislative history of the Twenty-Fifth Amendment as President Reagan was in surgery.
Largely as a result of that episode, presidents have much better contingency planning. Still, nothing is guaranteed. This cliffhanger is a good example of the importance of careful, clear constitutional drafting. Presidential disability and succession rules are no places for the slightest uncertainty. They should be certain and swift — there should never be doubt about who the president is at any given moment.
This cliffhanger exposes flaws in the drafting process, because earlier drafts of the amendment were written in a way that would have prevented the Phillips scenario from ever occurring. The book offers some thoughts about improving the amendment-drafting process to prevent these sorts of things from happening. (The Twenty-Fifth Amendment is also the only one I am aware of with a typo in it. Ten points to the first commenter to find it.)
In the meantime, as I said at the outset, the fix here is relatively easy. Presidents and their legal staff need to make it clear — right now, when there is no crisis — that they understand that the vice president is in charge during the four-day waiting period.
As mentioned above, contingency plans aren’t always followed. Nevertheless, if the proper interpretation of Section 4 gets engrained regularly enough, the chances of someone getting in wrong in a crisis will fade away.
flydiveski says:
Section 4, there’s a singular/plural mismatch. “principle officers of the executive departments” in one place and “of the executive department” in another.
January 25, 2012, 8:54 amSander Hjortshøj says:
In the first paragraph, Cabinet secretaries are “principal officers of the executive departments” but in the second they are the “principal officers of the executive department.”
January 25, 2012, 9:01 amProf. Brian Kalt, guest-blogging says:
Correct. And it was OK in earlier drafts, slipped in late, and was seen as not worth fixing. The fact that an internet commenter spotted it so quickly plays into one of my key suggestions for better drafting… (The fact that the commenter made a typo too — “principle” instead of “principal” — is not a problem for my plan.)
January 25, 2012, 9:04 amSeth Tillman says:
Brian,
Applying your disability analysis to Article II, Amendment XII, and the Presidential Succession Statute, a different but related issue, isn’t it most sensible, in an emergency, to put into the acting-presidency a person who has behind him/her a majority of the House — at least, as a temporary measure.
It strikes me that in regard to your disability analysis, the policy concern behind your analysis is to avoid the turmoil of two strong claimants to the presidency. I think that makes sense. But when commentators (I think you included) turn to succession, that goal takes a back seat to “securing” party continuity. Why is that?
Seth
(I hightly recommend Kalt’s book.)
January 25, 2012, 9:09 amAnonymous says:
Typo: “principal officers of the executive departments” ≠ “principal officers of the executive department” (or maybe it does, we don’t know).
January 25, 2012, 9:52 amRhymes With Right says:
Given that the newly appointed cabinet secretaries have not been confirmed, would they have any legitimate role in this scenario?
January 25, 2012, 9:57 amAnonymous says:
Not to detract at all from the argument in Prof. Kalt’s 9:04am comment, but some readers may have found the answer in a Chapter 3 footnote as well. ;-)
January 25, 2012, 9:58 amL. Beth says:
You have to watch out for those pesky plurals. Departments versus department makes a big difference.
January 25, 2012, 10:03 amRhymes With Right says:
Though I suppose the president could determine that the simultaneous lunch breaks of both houses of the legislative branch was sufficient to justify recess appointments for the eleven cabinet secretaries.
January 25, 2012, 10:04 amProf. Brian Kalt, guest-blogging says:
Seth: I think that the first principle of any succession regime should be certainty. Everything takes a back seat to that. Once that’s there, I’m not sure that there’s any parallels to draw between disability succession and regular succession. Party continuity isn’t an issue at all in 25A4.
Rhymes With Right: In the scenario, the appointments are to make these people acting Cabinet secretaries. There is an interesting debate as to whether acting secretaries can participate in the 25A4 process. It’s another area where better drafting would have helped.
January 25, 2012, 10:15 amSteve says:
I dunno, the language of the amendment that says “he shall resume the powers and duties of his office unless . . .” seemed pretty clear to me that he doesn’t get the power back.
January 25, 2012, 10:16 amGarrett says:
Assuming for the moment that the President took back power immediately, wouldn’t any new cabinet appointments have to be confirmed by the Senate first (assuming the Senate was not in recess)? If 11 cabinet officers suddenly get nominated, I think the Senate is going to get really interested very quickly.
January 25, 2012, 10:41 amChem_Geek says:
No frozen strawberries missing from the White House Mess?
January 25, 2012, 10:42 amProf. Brian Kalt, guest-blogging says:
Garrett: They are named as acting secretaries, a designation that requires no action by the Senate. In any case, even if the Senate were “to get really interested very quickly,” they couldn’t do it quickly enough in this case. I have no doubt that the president should and would lose here; the question is how much damage gets done in the process.
January 25, 2012, 10:47 amJeffDG says:
That’s true. But under the present precedent, if the Senate has gone home for the night, they’re in recess. :)
More specifically, the President has the authority to fire Cabinet members without Senate approval. Then the Cabinet would either be loyal to the President (those who voted to keep her), or potentially could be considered to not be able to act for lack of quorum (majority of cabinet roles are vacant).
January 25, 2012, 10:49 amWaldo says:
For purposes of this scenario, it doesn’t matter whether or not the new cabinet secretaries get to participate. If the firing is valid, then a majority of the cabinet cannot make the required transmission to Congress disputing the President’s assertion of non-incapacity. It’s now 4-0 in favor of the President, IF the firings are valid.
January 25, 2012, 10:50 amPublius The Lesser says:
While discussion of the legal issues is nice, in practice, the resolution of this scenario will come down to how it plays out in popular opinion, which will in turn come down to how well known the President’s disability and how the public perceives it. If the Vice-President and the cabinet looks like they’re attempting a coup against a competent, if eccentric, President, they will lose, regardless if they are legally right or not. Likewise, if the Vice-President and cabinet are perceived as removing a mentally-disturbed President who is incapable of discharging the duties of her office, they will win unless Congress goes against them. If the disability isn’t known or suspected among the public, then it all comes down to a combination of how popular the President is with the public and with the press.
In short, regardless of the legal technicalities, this is a political question that will be resolved by the body politic at large.
January 25, 2012, 11:04 amSykes Five says:
Through what means?
January 25, 2012, 11:20 amEvan says:
Another possible fix: The Amendment says the Cabinet may be replaced by “such other body as Congress may by law provide.” So, at any time, Congress may clarify the uncertainty by replacing the Cabinet with “the latest occupants of the Cabinet offices to have been appointed with the advice and consent of the Senate”; the ten Senators with the most seniority; or even the Governors of Maryland, Delaware, and Pennsylvania.
January 25, 2012, 11:36 amDavid says:
Presumably because whatever individual or body ends up making the final call, whether it’s Congress, the Supreme Court or the military, would do so on the basis of politics and perceived legitimacy rather than their actual interpretation of the amendment.
January 25, 2012, 11:49 amChris says:
Prof. Kalt:
Your reliance on legislative history assumes that Justice Scalia does not get to decide this issue.
January 25, 2012, 11:58 amcaptcrisis says:
I love these posts. Great fun to figure out and some serious points too. Thanks!
January 25, 2012, 12:06 pmPLR says:
I agree with captcrisis, Prof. Brian is one of the most entertaining guest bloggers I have read at this site.
This is also a test post, since two of my posts this week (both innocuous) seem not to have shown up. Maybe my effusive praise will make the software behave today.
January 25, 2012, 12:28 pmarch1 says:
“They should be certain and swift — there should never be doubt about who the president is at any given moment.”
It almost seems like someone should spend a little time on Qs like:
1) how much risk of the president’s identity being ambiguous for (say) 24 hours or more is acceptable (1%/yr? more? less?)
2) what are the top scenarios, and do they in aggregate reach this level?*
3) if so, fix them
Overkill? I guess this depends in part on whether the continued functioning of the executive branch is thought as important as the continued functioning of (say) a large commercial website, for which analyses of this kind are routinely considered worth the effort.
*You can tweak this till the cows come home – e.g. prioritize the scenarios by (likelihood*duration^2) / fixDifficulty, or do what SW people call a Process Failure Mode Effects Analysis, or etc.; the main thing is to assess the failure modes in some structured way, and at least crudely quantify their probabilistically expected impact, as a basis for deciding what to fix and in what order.
January 25, 2012, 1:27 pmCharlie Eldred says:
I think Vice President Close should have signed the disability document in the movie Air Force One.
January 25, 2012, 1:31 pmflydiveski says:
Hey, whaddaya mean, perfesser? I spel real good!
/If I had cut and pasted, this never would have happened. Grouse, grouse.
My major concern with your thesis is that additions and modifications to the government’s foundation document cannot be written to avoid unexpected outcomes without descending to a level of detail that would render them both impossible to adopt, much less implement. Implementation is necessarily the arena of Congress and the courts.
January 25, 2012, 1:32 pmSteve says:
Yes, but Congress has to clarify the uncertainty “by law,” which is to say, by passing a bill that gets signed by the President (not bloody likely in this scenario) or by overriding the President’s veto. If you have enough votes to override a veto you could just impeach the President anyway.
January 25, 2012, 1:46 pmGeorgeH says:
This is one place where I think the strict interpretation of ‘cases and controversies’ have made it much harder for the judicial branch to weigh in on these matters ahead of time. I mean, sure there’s a limit to how far the courts should go, but it seems to me that in a few of these cases it would be a good thing for the law-school-hypothetical-trained Federal Judges and Justices of the Supreme Court to take a preemptive look at the succession statutes and sign off on what they really mean.
Maybe this is the only place where there should be a real exception to the standing rules (although I think anything where it really can’t be redone (like election law) might be considered), but I do think having the previously done, carefully considered opinion of the third branch in place before the crisis would lend a certain amount of clarity to the situation.
January 25, 2012, 1:51 pmEvan says:
Good point. But, I guess Congress could do it now, in advance of any uncertainty.
I’m sure it’s not what you meant to say, but all I can think of when I hear that is this very entertaining Onion article…
January 25, 2012, 2:00 pmgreat unknown says:
Interesting that [probably mostly] attorneys are thinking in terms of the technical issues here and how politics/public opinion will lead to an ultimate resolution. People: there’s a WAR going on!
January 25, 2012, 2:01 pmGeorgeH says:
If they can’t get 2/3 of both Houses, President Philips is going to undisputably be back in office 3 weeks later anyway — once she says she doesn’t see the problem, Congress has to affirmatively agree to the removal within 21 days. Admittedly they can pass an ordinary law with the veep’s signature in the interim.
To be honest, I don’t see why the veep couldn’t continue his coup by redoing the declaration after the 21 days are up. At least by the letter of the law, and depending on how we resolve Philips’ firing of the whole cabinet in the time between the first declaration expiring and the veep making the second one. I guess the point is that by that time, Congress is involved in a big way and its a huge political question anyway, so we don’t have to address it, but as a computer programmer these kinds of loops and race conditions bother me. :)
January 25, 2012, 2:01 pmBob from Ohio says:
Cooper, the chief of staff, didn’t do a good job here.
Once he got word of the coup attempt, the correct response was for the President to fire all the cabinet officers and replace with loyalists as acting secretaries.
No one to issue the A. 25 notice. There would still be a “crisis” that Congress could resolve by impeachment if warranted, but no dueling presidents.
I personally would rather have one slightly unbalanced president than 2 different ones. The military would not obey (I hope) any completely lunatic acts. Day to day, not much ireversible damage can be done.
By the way, why would the cabinet and VP go immediately to A. 25? Is there no First Gentlement to be convinced first of a problem? No doctor to proscribe medicine?
January 25, 2012, 2:24 pmDave N. says:
Most people do not realize the more innocuous portion of the 25th Amendment (the President giving up authority temporarily to the Vice President) has already been employed three times, all as a President was preparing to undergo colonscopies: Once by Ronald Reagan, on July 13, 1985, which lasted approximaetly 8 hours (Reagan had surgery immediately afterward); twice by George W. Bush, once on June 29, 2002, for a little over 2 hours, and again on July 21, 2007, for another two hour period.
As far as anyone knows, neither Acting President George H.W. Bush nor Acting President Dick Cheney did anything of substance during their brief administrations.
January 25, 2012, 2:37 pmBill Harshaw says:
If you don’t hit that, you don’t do Caine Mutiny justice.
January 25, 2012, 2:48 pmEric Rall says:
In addition to the statute option mentioned above (Congress passing a law assigning counter-declaration powers to the old cabinet, then overruling President Philips’s veto), there’s also the option of impeachment. The 25th amendment requires 2/3 of both houses to sustain a counter-declaration, which is actually a higher bar than is required for impeachment and removal from office (simple majority in the House to bring charges, and a 2/3 majority in the Senate to convict and remove from office).
The problem is that the Constitutional text specifies that impeachment is for cases of “treason, bribery, and other high crimes and misdemenors”, and it’s dubious that insanity or incompetence qualify.
Looking over the history of impeachment convictions in the US (all judges), though, there does seem to be some precedent for applying impeachment in this case
John Pickering was impeached and removed on charges of “drunkenness and unlawful rulings” in 1803, having apparently gone insane. His behavior as described in his wikipedia article very closely mirrors that of our hypothetical President Philips: absenteeism combined with erratic and apparently irrational behavior when he did show up.
Halsted Ritter was impeached in 1936 on a number of charges (including embezzlement, favoritism, and tax evasion), but was convicted only of “bringing the judiciary into disrepute”. This is a pretty vague and open-ended charge, which could probably be used as precedent for impeaching a President on charges along the line of “bringing the Presidency into disrepute” or “conduct unbecoming Commander-in-Chief”.
Harry Claiborne was impeached and removed from office in 1986 on two charges of tax evasion and one charge of “bringing disrepute on the federal judiciary”, confirming the Ritter precedent.
There have been several other impeachment convictions, but on charges that clearly wouldn’t apply in this case: two for bribery, one for perjury, one for a combination of corruption and perjury, and one for incitement to rebellion.
Alternatively, President Philips could be impeached on charges of attempting a coup, under the legal theory that her interpretation of the 25th amendment was false and thus her cabinet firings an illegal attempt to seize the office of the Presidency unconstitutionally. If sustained by the Senate, this would firmly establish a precedent in favor of the VP continuing to hold power during the four-day counter-notification period.
In practice, I’d expect the House to take a shotgun approach, passing articles charging Philips for incapability (based on the Pickering precedent), disreputable conduct (based on the Ritter/Claiborne precedents), and attempting to illegally assume the powers of the Presidency, in hopes that at least one charge would stick in the Senate.
January 25, 2012, 3:16 pmDan Lavatan says:
It seems to me that the President could be clever and transmit the declaration that no disability exists without telling the VP, in the hopes that the four day period elapses. Then she could fire the VP in four days.
In practice, I think the national continuity coordinator would make the determination of who is in charge at any given moment.
January 25, 2012, 3:45 pmSF Alpha Geek says:
One thing that this hypo doesn’t address is the issue of timing – what happens in the few minutes or more it takes to assemble the cabinet, write the declaration, and “transmit” it – the amendment says declaration, singular, not declarations: do all the cabinet heads have to assemble sign the same document – and does email count as written?
To me, the real danger wouldn’t be President Philips pacing in her office doing nothing: let’s assume Iran had initiated an all-out attack on Saudi Arabia. What happens if Philips orders STRATCOM to launch, and Merrick and the cabinet think that’s nuts. Merrick informs Philips and the STRATCOM commander of his intention to assemble the cabinet and to, along with 11 department heads, transmit a written declaration IAW 25A.4. Philips says “That’s great, but for right now, I’m still the president. You have your orders, general.”
Should the general launch? Should he be tried for disobeying a lawful order if he doesn’t? Should he have thought of this beforehand? What if Saudi Arabia has provided information that Iran has ICBMs hidden in their major cities and intends to launch them against the US. Philips thinks this threat is credible, but Merrick doesn’t – should that alter the general’s decision?
January 25, 2012, 4:03 pmBMan says:
It was no constitutional crisis, but I did witness (from OMB) a minor palace coup in the Reagan White House. Reagan had named John Moore, then Director of the NSF, to be acting Director of OSTP (i.e., the President’s Science Advisor) after Jay Keyworth resigned in 1985. This is an unusual position, a presidential advisor subject to Senate confirmation. Hours before Moore was to take office, and while he was on travel, some of the career staff in OSTP went to W.H. Counsel Fred Fielding to point out that the authorizing statute did not allow another federal officer to hold this position. Fielding shrugged and nixed the appointment, allowing one of the career officials to take command. Using plans that had clearly been a long time in the making (e.g., new stationary already had been printed), the mutineers began moving people around, sending various detailees back to their agencies, and settling silly bureaucratic scores. I notified Presidential Personnel; they quickly sent in a substitute teacher to make the children get back in their seats and settle down.
January 25, 2012, 4:14 pmCatCube says:
This depends on whether or not you want to keep the OP’s hypothetical about the stance of the SECDEF, who opposed President Phillips. AFAIK, release of nuclear weapons can only be done by the National Command Authority, which is comprised of both the President and SECDEF. If they both don’t agree, there’s no valid order to launch.
As a practical matter, Iran couldn’t launch an attack with ICBMs undetected, so the general could rely on whether or not there are actually inbound missles to assist in his decision. Also, if Iran just had a few squirreled away, they couldn’t do enough damage to prevent a US counterattack, so riding it out and attacking with a second strike is still a possibility. If they’ve already launched, it’s not like we’d have the ability to do anything to save the targeted cities. (Unless we get a working missle-defense system, of course.)
January 25, 2012, 5:02 pmDave N. says:
In all seriousness, there is one time in our history and perhaps two other times, prior to its ratification, when the 25th Amendment probably would have been invoked had it been in effect.
On October 2, 1919, President Woodrow Wilson suffered a stroke, leaving him blind in one eye and paralyzed on his left side. Evidently both the cabinet and Vice President Thomas Marshall were left in the dark about the scope of his incapacity.
Additionally, President James A. Garfield lived for 80 days after being shot, in which his ability to carry out his duties was seriously in doubt. In the same vein, President William McKinley was shot on September 6, 1901 and died eight days later. On September 13, his condition rapidly deteriorated and he died early the next day.
January 25, 2012, 6:13 pmSyd Henderson says:
The President can’t fire the Vice President.
January 25, 2012, 7:09 pmTNCannuck says:
The President can’t fire the VP…the Vice President is, nominally, an elected officer, just like the President is.
January 25, 2012, 7:51 pmjohnny says:
I’m probably missing something here, but:
1)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
2)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
3)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
If the Congress, within twenty-one days after receipt of the latter written declaration
If latter refers to the third declaration, it is the last, not the latter. I guess that’s a grammatical error and not a typo, though.
January 25, 2012, 7:59 pmEvan says:
Except that (a) the President can’t fire the VP; (b) he’d have to send the declaration to Congress, where someone would probably tell the VP and Cabinet; and (c) I don’t think people even know there is a National Continuity Coordinator; I didn’t until you mentioned him and I looked up the term.
January 25, 2012, 8:54 pmClark says:
Dick Cheney’s acting presidency was neither brief nor insubstantive.
January 25, 2012, 10:48 pmMilhouse says:
I’m probably too late to be first, but here goes anyway:
Should be “either of”.
January 26, 2012, 12:24 amMilhouse says:
Oh. I didn’t even get that far. So there are at least two typos.
January 26, 2012, 12:26 amMilhouse says:
No. But if the President’s reassumption of power was valid then the 11 fired secretaries are fired, so the cabinet is now only the remaining loyalists, of which the VP would be unable to get even one vote, let alone a majority.
January 26, 2012, 12:31 amMilhouse says:
Even if he does, the language is sufficiently clear. Still, a prudent VP Merrick would anticipate this, and would transmit his re-assertion letter in advance, to take effect the moment after the President’s letter arrived.
January 26, 2012, 12:49 amMilhouse says:
A cumulative time of 4h 20m is brief, and he didn’t do anything official in that time.
January 26, 2012, 1:23 amLeonidas says:
I’ll add a twist of my own, suppose the Chief of Staff warns the president and she comes in shortly after the first vote that she is unfit, the written declaration has been handed to an aide for the purpose of being delivered to the President pro tempore of the Senate and the Speaker of the House of Representatives but has not yet left the room and the President fires everyone on the Cabinet who voted to remove her on the spot and orders the letter turned over to her and rips it up? What definition of “transmit” applies? To send from one place to another, or to send out? And even if it can later be resolved, if nothing else by an impeachment, both sides certainly would have an argument.
January 26, 2012, 5:53 amPubliusFL says:
Assuming the President can’t set aside the two-man rule at her discretion, based on her inherent constitutional authority as commander-in-chief. The NCA is only defined by DoD policy, not even by statute, much less in the Constitution.
January 26, 2012, 10:17 amLou Gots says:
“(The Twenty-Fifth Amendment is also the only one I am aware of with a typo in it.. . ..)”
In the Second Amendment: the commas after the words, “Militia,” and “Arms.”. Probably not in the original draft, not in the Amendment as ratified by the states, and added later as a kind of a Winston Smith “amendment.”
January 26, 2012, 10:34 amAssistant Village Idiot says:
You lost me at “War unexpectedly breaks out in the Middle East.” That’s like saying “Snow unexpectely breaks out in Alaska,” or “Beer unexpectedly breaks out at a frat party.” May the republic never have a president for whom war breaking out in the Middle East is unexpected.
Actually, there are quite a few areas of the world one could say that about…
January 26, 2012, 1:36 pmFoxy Links 26-Jan-12 | Think Like a Fox says:
[...] a Surface Warfare Officer and a wannabe lawyer, the Caine Mutiny is one of my favorite books. So this article about the implications of a”Caine Mutiny” in the White House was “in my [...]
January 26, 2012, 1:43 pmSF Alpha Geek says:
It’s pretty clear that the president has unilateral launch authority – the NCA describes the chain of command from the President through the SECDEF – it doesn’t make them co-equals. The president would be within their authority to bypass the SECDEF in issuing launch orders, despite the rumor that in the days leading up to Nixon’s resignation, his SECDEF issued “orders” that any strategic action be cleared through him.
As a practical matter, it would likely take some time to retarget and launch strategic assets. But the hypo does illustrate the real danger of the 25 A – 4 day and 21 day windows may be lightning speed in politics and law, but the hour that it takes to send a letter across town could be longer than the country has in a real crisis.
It will be interesting to see (if they declassify the Cold War continuity of operations protocols twenty-five or thirty years from now)whether they had provisions for invoking the 25th A in a strategic military crisis.
January 26, 2012, 2:40 pmCatCube says:
The other thing to consider is that an order to launch a massive nuclear attack with no indication of an inbound attack is arguably illegal. I say arguably, because that’s all it’ll take for our notional general to (legitimately) drag his feet checking with JAG, and potentially delay until the civilians sort it out.
You’re right about 4 days being a long time in a crisis, and that is an extremely long time for the ground conflict in the hypothetical. But if Iran using a few hidden nuclear missles is the enemy, we could actually take our time with a response. The lightning fast, everybody running to planes with alarms blaring response was designed for a nuclear near-peer, the Soviet Union. They had the ability to launch a massive simultaneous attack where any missle we didn’t get out of its hole or plane we didn’t get off the ground in a few minutes would be gone. If we get hit with one or two missles, STRATCOM can take a few days to get its ducks in a row and then turn the perpetrator into a sheet of radioactive glass. There might be political or diplomatic reasons to go faster (i.e., maintaining credibility about our nuclear response) but there’s no military need to do so.
January 26, 2012, 6:15 pm