Constitutional Cliffhangers: Responses to Some Comments

I have had a lot of fun this week blogging about my new book, Constitutional Cliffhangers. I’d like to thank Eugene again for inviting me, and to the readers and commenters, especially for their kind words. This week has been even better than my last appearance here, when Eugene unveiled Kalt’s Law of Presidential Facial Hair to the world.

This post is devoted to answering some of the more challenging comments my threads got — or more precisely, ones to which the answer is something other than “I address that at length in the book, actually.” There were about thirty where I wanted to just paraphrase long passages from the book (and I do it one time below).

arch1 asked what I meant when I referred to “fixing” presidential constitutional cliffhangers. It’s important to distinguish first between cliffhangers in which the danger is a bad result, and cliffhangers in which the danger is uncertainty.

The latter are much more perilous. The most harrowing scenarios are ones where two people are claiming control of the presidency, as in my posts on Wednesday (on the succession law) and Thursday (on presidential disability). In those cases, a “fix” would be adding certainty and clarity. In the case of the succession law, that means passing a new statute. For the disability procedure, presidents and their legal staffs need to take some simple, precautionary steps.

There’s more difficulty fixing cliffhangers in which the problem is a bad result. Take Chapter 1, on prosecuting sitting presidents. There would be some uncertainty, but the courts could resolve it quickly enough. The bigger problem would be that the presidency might be derailed by a single, unaccountable prosecutor — or, if you take the other side, the problem would be that the president would potentially get away with a crime. A fix is harder here, because it would require consensus on which outcome would be the bad one. It’s hard enough to get Congress to act when the public agrees on something, let alone when there is no consensus at all.

Fixes are even harder when the only way to achieve them is by amending the Constitution. That’s the case in Chapters 2 and 5, on self-pardons and late impeachments. Uncertainty would be resolved fairly quickly. If people were upset at the result — that the president successfully pardoned himself (or couldn’t), or that an ex-president was impeached (or couldn’t be) — they would need to amend the Constitution to change that result, but amendments are pretty unlikely. I argue in the book that, for these cliffhangers, we’re best off just sitting back, doing nothing, and hoping for the best.

Don C and Malvolio commented, with regard to the Wednesday post on the succession struggle, that the Secret Service would follow the succession law and escort the secretary of state from the White House. The Secret Service might be receptive to a court order voiding the succession law, but until and unless that happened, these commenters made a strong case that the Speaker would have the guns on her side.

I think that their points are well taken. There would be limits to the Secret Service’s loyalty to the Succession Act of 1947, though. Secret Service agents and their superiors are human beings, after all. In the hypothetical, the president — and presumably her Secret Service detail — has just been blown to smithereens. The Speaker was complicit in preserving the vacancy in the vice presidency, and fueled the murderous rhetoric that led to the assassination. Indeed, the assassin specified that the purpose of the bomb was to install the Speaker of the House as president. Couple that with the strong constitutional arguments, and a preliminary injunction or two, and who knows what would happen?

For the most part, I am content to defer to my lengthier discussions of answers in the book, but I did want to respond to Brett Bellmore’s comment about Thursday’s third-term scenario. He wrote:

Come on, now, you might not want to “get into” the 12th amendment, but that doesn’t make it unclear.
Granted, with enough bad faith, you can ‘interpret’ anything to mean anything, but a two term President running for VP takes stratospheric levels of bad faith.
Hm, come to think of it, that doesn’t actually rule it out, in today’s Washington…

Of course, I do “get into” it in the book. I’m not afraid of the Twelfth Amendment, folks, I’m just not interested in making my blog posts even longer than they are, so I necessarily have to leave out a lot. But I’ll allow this comment (and this one from B.D.) to goad me into getting into it more here.

The Twelfth Amendment says that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” The question here is what “eligible” means.

Early drafts of the Twenty-Second Amendment talked about two-termers being “eligible to the office,” a phrasing that would have avoided any confusion, but the final version speaks instead of being “elected to the office.” The question is whether that makes two-termers “constitutionally ineligible” to be president — and thus ineligible to be a vice president under the Twelfth Amendment.

If you think that the Twenty-Second Amendment bars two-termers from any service as president, then there’s nothing to talk about. To you, two-termers are completely ineligible to be president, and so completely ineligible to be vice president either. But if you think that the Twenty-Second Amendment allows two-termers to serve as president through succession, things are not as clear cut.

Some people argue that electability and eligibility are synonymous. This would mean that when the Twenty-Second Amendment makes two-termers presidentially unelectable, it also makes them “ineligible” to be president, and thus ineligible to be vice president, under the Twelfth Amendment.

Others say that eligibility is broader, with electability as only one of its parts: because the Twenty-Second Amendment stops short of making two-termers totally ineligible to serve as president, the Twelfth Amendment does not restrict them in any way from becoming vice president either.

The most subtle interpretation is that, by precluding their election, the Twenty-Second Amendment makes two-termers partially ineligible to be president. The Twelfth Amendment defines vice-presidential eligibility as identical to presidential eligibility. Now that the Twenty-Fifth Amendment provides for vice-presidential vacancies to be filled by appointment rather than election, the vice-presidential door is open, partially, for two-termers under this interpretation.

Brett and B.D., I hope that’s a good-enough-faith effort at showing the range of potential Twelfth Amendment arguments for you.

Finally, I wanted to respond to the many commenters who said that they’d like to buy my book, but balked at the price. I wish there was something I could do about that. I tried. Academic publishing is a tricky business, though. Print runs are small and fixed costs are high. More to the point, mass-market appeal is tough to gauge. I’m sure that I’m not the only author who thinks that the publisher underestimated the mass appeal of his own case, but I’m equally sure that most of us are wrong. All I can say is that Constitutional Cliffhangers is worth every penny :)