Constitutional Cliffhangers: Mutiny!

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.

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