May 18, 2017

The 25th Amendment solution (or non-solution)

Good old Rusty Douthat is proposing that we look at the 25th Amendment, rather than the impeachment process, as a way of dethroning President Trump.

Update: Proving that Peter Principleship stupidity is bipartisan for inside-the-Beltway / Acela Corridor pundits, Richard Cohen halfway makes the same call, though he doesn't go full Douthat.

Beyond my continuing to reject the idea of a Trump-Putin conspiracy, I do agree with Douthat that Trump probably hasn't risen to the level of "high crimes and misdemeanors" prescribed by the Constitutional impeachment process in part because he's too dumb to do that.

So, yes, let's look at the 25th Amendment.

Section 4 is the applicable portion:
Section 4. 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.
Several thoughts.

First, this is an invitation to a quasi-coup by a savvy Veep. Mike Pence is certainly more savvy than Trump. And, people like Rusty Douthat would greatly prefer him. In fact, I've half-jokingly tweeted that Trump tapped Pence as sort of a hostage against Congressional Democrats.

You just have to round up half the cabinet, plus one, and say, "Voila, I'm the acting president."

Then, if Trump contests it?

Oops, you're back to a quasi-impeachment setting.

Two-thirds vote of both houses of Congress.

So, first, for this quasi-coup to succeed, Pence has to be a good vote-organizer, and a good vote-counter along with that.

Second, Members of Congress must have gonads nearly as big as they would for impeachment. Charles Cooke at National Review talks about the "psychic shock" of invoking the amendment. He's primarily referring to Trump voters, but this must also be extended to Congress, whose members in general like the daylight of responsibility about as much as cockroaches.

Third, it seems pretty clear this provides for a JFK-type situation, as Cooke also notes; in fact, it was in the wake of his assassination, and wonders about where U.S. leadership would have been at had Lee Harvey Oswald not killed him, but, say, the head shot did permanently incapacitate him, that the amendment were passed.

In this case, even for the initial coup, let alone two-thirds of Congress, Pence would have to get a psychiatrist sign off on a mental health evaluation. First, is Trump "diminished" in that sense? Probably not. Is he an idiot? Yes.

(Sidebar and addendum: If a threat of the 25th Amendment could be used to force Trump to take ADHD meds, if that's what he needs, well, in that limited sense, it might work. But, the threat has to be credible in the first place.)

And, Oliver Wendell Holmes, from the Supreme Court bench, long ago spoke about the rights of America to have idiotic laws and, presumably and tacitly behind that, idiotic government officials.

For example:
I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It's my job.
And, unless something is unconstitutional, judges theoretically rule by statute, then common law.

So, no, Rusty, it's a non-solution. And I think you know that. Basically, you're trying to fart in already stinking bath water and pretend you're giving us a bubble bath.

There's also this sidebar, written about impeachment but also applicable to use of the 25th Amendment. What if it fails? You think Trump is stark raving mad NOW? To add to that, Bruce Bartlett notes that Faux News et al would likely have shielded Nixon today while sheepdogging Congressional Republicans.

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Sidebar: This is yet another argument for parliamentary, or at least quasi-parliamentary, government. (A Donald Trump would have never risen to run the GOP. Unfortunately, a Paul Ryan might have, and a Hillary Clinton almost certainly would have headed the Democratic Party. Of course, quasi-parliamentary government would theoretically provide more openings for third parties.)

And, I also think Rusty knows THAT.

Per my review of "Frozen Republic," the real answer is constitutional reform that goes well beyond eliminating the Electoral College. All of this is badly, badly needed.

Sidebar 2: This is the second blog post in a row where I've had to note the Peter Principle class of inside-the-Beltway, Acela Corridor "journalists" has limited understanding of the U.S. Constitution. That's not to mention the Texas Legislature's ongoing cluelessness, mixed with willfulness, about that document.

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