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Download the Viator app now to use code Viator10 for 10% off your first booking in the app. Regret less. Do more with Viator. Hey, everyone. Ellie here wishing you a happy Friday morning. Well, it seems like every week in these preambles, I end up saying almost the same thing, which is what a crazy week in the law. This week was actually sort of quiet on the law, but on the politics side of the ledger,
Not so much. I don't know if we've had this much upheaval politically in this short an amount of time in my lifetime. You'd probably have to go back to 1968 or Watergate. I was born in 1975 for the record. So both of those predate me. So in my lifetime, that qualifier stands.
But as always, the law is part of the discussion and informs and frames what's happening politically. And there's an angle that I think has been misused, misdiscussed, to coin a phrase that's not a phrase, and misunderstood that I do want to do a little bit of a deep dive historically and legally on today and hopefully discuss.
shed some light on this area. Also, remember to subscribe or stay subscribed or add a subscription to our new feed, The Council. That's this feed right here, same one you're listening to now. But in addition to my pieces, better yet, you get new pieces every week from Joyce Vance, from Barb McQuaid, from Asher Rangappa, and from Rachel Barkow.
It's an awesome collection of talent, myself excluded. I'm thrilled to be part of it, and I love listening to all of their notes as well. As always, keep sending your thoughts, questions, and comments to letters at cafe.com. We rarely get these opportunities for bipartisan self-improvement, but we've got one right now. How about if everyone agrees to knock off the sensationalistic nonsense around the 25th Amendment?
Three and a half years ago, Democrats and others rightly enraged about Donald Trump's effort to seize power by force on January 6th, wrongly pointed to the 25th as a source of potential legal redress. Right now, Republicans are having a disingenuous constitutional temper tantrum about Joe Biden's cognitive ability to finish out his term. Both parties tried to distort the meaning and intent behind the 25th Amendment to achieve expedient political and rhetorical ends.
we'd be better served by reserving the provision for when it's truly needed. Now, the history is vital here. In 1965, less than two years after the assassination of John F. Kennedy, both the House and the Senate passed the 25th Amendment by the constitutionally mandated two-thirds vote. Can you imagine anything passing both houses by two-thirds nowadays? Nearly two years after that, in early 1967, the amendment was ratified when it gained approval from the required three-fourths of states.
Now, the overarching concern arose from the horror of the Kennedy assassination. What if, we rightly wondered, Kennedy had been hit at a slightly different trajectory and wound up alive but comatose? What if any president reached a point of incapacitation? Now, up until 1967, we had no answer.
But the 25th Amendment established a procedure to transfer power away from a president who is, quote, and the language here is really important, quote, unable to discharge the powers and duties of his office, end quote. The text is key, unable to do the job.
not has declined from his prime and has trouble descending staircases and reading from a teleprompter in Biden's case, not even is making dangerously unhinged decisions and trying to subvert the constitution in Trump's back in 2021, unable, incapacitated. To borrow from a famous Supreme Court argument about a very different topic, we'll know it when we see it.
And this, folks, is not it, or even close to it. Again, consider the history. We've seen the 25th Amendment invoked four times to transfer power away from the president, each for just a few hours. In 1985, when President Ronald Reagan underwent cancer surgery, though there was uncertainty about whether he had formally invoked the amendment. In 2002 and then 2007, when President George W. Bush had routine colonoscopies,
And in 2021, when Joe Biden had a colonoscopy as well. In all these cases, the president was under anesthesia and truly, quote, unable to perform the job. Unable as in out cold.
Now, we can imagine a circumstance where the 25th Amendment kicks in without the president being so obviously and completely incapacitated, a stroke or injury serious enough to substantially impair the person's ability to function, for example. But we're nowhere near that point with Joe Biden. Republican howling about the 25th is based on a palpably false premise. As House Speaker Mike Johnson put it, quote, if Joe Biden is not fit to run for president, he is not fit to serve as president, end quote. First,
That's just not what Joe Biden said. In his letter announcing that he'd drop out of the race, the president made clear that his decision was based on politics, not competence. Quote, here's what Biden wrote. And while it has been my intention to seek reelection, I believe it is in the best interest of my party and the country for me to stand down and to focus solely on fulfilling my duties as president for the remainder of my term. End quote. In other words, I get it. My party's all over me to quit and I can't win.
Republican logic also fails on a more basic level. While Biden is plainly in decline, it's an overreach to claim he is currently unable to serve. Earlier this month at the NATO summit, for example, Biden was imperfect, but obviously fluent and conversant on complex nuances of foreign policy. He's not in tip top shape, but he's nowhere near unable to do the job. And even if Biden likely could not finish a second term ending in twenty twenty nine, it does not follow that he can't serve out the six months remaining in the
current term. In any event, Republicans are just wasting their breath with their cries to sideline Biden under the 25th. Most fundamentally, it's simply not up to them. The 25th Amendment can be invoked only from inside the presidential administration. Now, there's an easy way and a hard way to transfer power away from an incapacitated president under the 25th Amendment.
The easy way is that the president can voluntarily certify in a written declaration to Congress that he is or will be incapacitated, passing temporary power to the vice president, who then becomes acting president, as we saw in the aforementioned scenarios involving Bush, Reagan, and Biden. Fun fact, Kamala Harris actually briefly was the acting president in 2021. Now, when the president recovers sufficiently, he can so certify, and the job is his again.
Now, the hard way requires the vice president and a majority of the principal officers of the executive department, meaning the cabinet, to certify to Congress that the president is incapacitated.
After January 6th, certain members of Trump's cabinet at least briefly discussed invoking the 25th against him. The Biden administration has had no such reported talks. Now, if you're a fanatic for mind-boggling, high-stakes constitutional ping-pong matches, the process doesn't necessarily end once power transfers over to the VP. The president can then contest his sidelining by certifying to congressional leaders that, quote, no inability exists.
at which point he returns to power. But, and it's still not over, if the VP and Congress disagree, they can again certify to Congress that the president remains incapacitated. And if the president disagrees, then he can object and throw it to Congress, which can transfer power to the vice president by a two-thirds vote of both the Senate and the House.
I warned you. Now, I don't think Republicans are serious about the 25th Amendment. They must understand down deep how it's really supposed to work. And what would the 25th get them anyway? Kamala Harris would become president for the next few months, and Trump would suddenly be running against an incumbent with access to the Oval Office and Air Force One and the presidential seal behind her? Democrats were operating in better faith back in 2021, but they also plainly understood the stagecraft involved.
The 25th Amendment is one of our ultimate constitutional safeguards. We hope we never have to use it, brief inpatient medical procedures aside. If we ever do reach a day when the 25th Amendment merits serious consideration, it'll be a scary moment for the nation. Let's not trivialize it now by treating it as a cheap political gadget. Thanks for listening, everyone. Stay safe, stay informed.
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