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Exit strategies Part II: Surprising aspects of the 25th Amendment

David Brin

Contrary Brin

September 03, 2017

Is there an exit strategy, in case the crazy gets even worse? Given the rapidity of events, I decided to offer a second weekend posting with some urgent perspectives.

You'll recall that last time I posed “four options.”  Among those exit strategies, I urged that we look away from impeachment, which would only serve the interests of those who provoke this phase of civil war. (Don't go there!) Indeed, as the clinical symptoms displayed by President Trump grow ever more extravagant, folks have started to stare longingly at the 25th amendment to the U.S. Constitution

Yes, you've seen articles lately discussing this option... all of them extremely shallowand missing a key point we'll reveal here. But for starters, do give it a careful read, because things could get critical very fast. The pertinent stuff starts here:
'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.'
Note this line in particular: "...or of such other body as Congress may by law provide..." 
Hence Congress can establish, by law, a commission of sages who may - in coordination with the Vice President - declare the President unfit to discharge his duties. Interesting. But has anyone, especially in Congress, actually thought through the implications? 
The group that one might normally expect to invoke this amendment — the Cabinet— is filled with Trumpists and some bona fide crazies. They will at best be slow to act on any Vice Presidential request to declare POTUS incapacitated… and hence the VP may also hesitate to ask, even at some critically dangerous moment. 
But consider that other body the 25th talks aboutNote: there is no prescribed time sequence, so an alternative commission could be created in advance, and thenceforth serve as a warning to the President, to remain calm. In order to be established "by law," over-riding a presidential veto, the 'other body' would have to be bipartisan.
Moreover, this commission would be able to act - in concert with the VP - almost instantly, should POTUS issue bizarre or especially dangerous orders, offering a way for sane grownups to cancel some crazy action or command. The mere existence of such a commission might ease the pangs of our Officer Corps, knowing they would have a place to turn, if some spasmodic-insane order came down.  I know of nowhere else that they could turn.
Without such a Congressionally established commission in existence, the VP would have to assemble the Cabinet behind the President's back and persuade a majority to betray the man who hand-picked them and to whom they owe everything. Which path do you think is more likely to act as a brake on sudden, spasm-lunacy?
The 25th Amendment continues: "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."
There it is again. The "other body" or Congressionally-appointed commission - in conjunction with the VP - may then reject the President's demand to be reinstated... sending the matter for decision by Congress. A 2/3 vote is then required in both houses to keep POTUS suspended. 
Thus we have an answer to anyone who claims this step would bypass the popular will, or create undue burdens on the presidency. There are several places where 2/3 majorities are required from both houses, plus cooperation from the Vice President... a far steeper set of obstacles, by the way, than is required for impeachment.
"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."
It is infuriatingly unclear what happens during the four days that Congress has to assemble and the 21 days it has to deliberate. I would assert that during those 25 days the VP is in charge. The Supreme Court would almost certainly have to decide.
What is clear is that there’s a way for Congress to lay groundwork in advance, to protect the Republic from an unstable president. A commission can be established... right now... that waits, ready to bypass the Cabinet in this one matter, but still requires both consent and courageous leadership from the Vice President. 
As a way to firm-up its trust and moral authority - especially since establishing it requires a law and hence likely an over-ridden veto - any such commission should be nonpartisan. I'd envision it starting with all the former presidents, vice presidents and retired Supreme Court Justices, plus an array of mighty American notables. (I'd add all U.S. winners of the Nobel Prize.)  And recall, that commission would be backed by the Constitution itself and empowered to cancel or postpone any rash presidential order, by exercising its right to hand reins over to the VP for a limited time.  
The circuit breaker for a mentally ill president is already provided for... if Congress chooses to use it. Note also that Senators and Representatives who might balk at a rush to impeach and remove might go along with simply creating a commission that could elevate the veep for a few days.
Even if such an action has only brief effect and POTUS is reinstated — recall it takes 2/3 of both houses to prevent that — the effect will still be to assure a pause for calm and reflection, during which any rash orders may be put on hold.
Believe me, I see flaws in this as well!  Given that Mike Pence is a member of an end-the-world-as-soon-as-possible cult, and has expressed utter devotion to Donald Trump, I am only somewhat eased.  
Still, I have to wonder. Do you think Congressional leaders are even aware of all this? Has anyone, anyone at all, worked it out down to this level? That the U.S. Constitution itself would support establishing a commission of sages in advance? One that would thereupon be able to act swiftly to protect us?

== ADDENDUM: Someone has, indeed, thought of it... ==

Since posting this, I stumbled across proof that others noticed the same thing. Alas, though, it's a Democrat.  And his well-meant efforts may have harmed, rather than helped promote such a commission.

"Rep. Jamie Raskin’s (D-Md.) bill seeks to create the Oversight Commission on Presidential Capacity to fill a role outlined by the Constitution’s 25th Amendment, which sets up presidential removal procedures."

This article is inaccurate and inflammatory in a few ways. But it shows that back in May Rep. Raskin at least noticed and pondered the inner meanings of the 25th. There's real overlap with my approach, but with emphasis on the commission being much more medical in nature: 

"Raskin wants to provide a specific “body” comprised of 10 physicians, psychiatrists and retired former leaders — like presidents and vice presidents — chosen by House and Senate leaders of both parties."

This could be a basis for negotiation about the actual bill, which would have to pass both houses... likely by 2/3 to override a veto. But I think Rep Raskin misses the point that even if Congress creates it, this "other body" cannot do a thing without the Vice President's cooperation and consent. The VP is central.

Moreover, this will be dismissed as partisan posturing, unless it is promulgated above-all by Ryan and McConnell, and they won't make any such move until it's almost too late.

So here's my clever political recommendation.  Staffers for Ryan and McConnell must discreetly approach a dozen important retired generals and admirals and ask them:

 "Do you believe that establishing such a commission in advance, so that the Vice President can act swiftly in a crisis, would enhance the security and safety of the United States?"

That's it.  If the response is yes, then it should happen. And history may remember those who prevented the simple measure.

(I will keep an eye on this Jamie Raskin fellow, though.)
== Another use ==
Okay, let me share a Doonesbury-level summer daydream. 
Such a commission — established for one constitutional purpose — could serve us in other ways. For example, by informally using the members' high-renown to help set up or endorse reputable fact-checking services that are beyond partisan reproach. 
Imagine both presidents Bush plus Obama, Clinton, Gore, Biden .... and Cheney and Quayle ... joining Sandra Day O'Conner and a dozen other luminaries saying "facts exist and here are several groups we trust to debunk all the lies going around."
Nothing would help us more than some process by which Americans could declare “our greatest sages and best minds say that’s false. So let's put at least that lie behind us.” 

== One way Bannon was right ==

My new posting pattern is to use the first half to address urgent news... and then segué to some of the less-urgent ruminations I've stored up.  So here we go with part 2.

While his malignant influence was partly responsible for the illness, I do agree with the departed-but-unlamented Dark Lord of the West Wing about one thing: the necessity of reversing the decline of U.S. influence, especially vis-a-vis trade and intellectual property. 

Moreover, those of you rejoicing over that decline have no idea, clearly, what the entire rest of human history was like before the 90% benign American Pax. (I agree that the bad 10% really sucked. Culpa nostrum. Now find another era with such a low ratio.)

Here is a very perceptive and articulate Australian view on Trump at the G20. It's actually the best summation of our situation that I've heard or read or seen, all in a compact, on-air report about POTUS effectively ceding leadership of the world to China and Russia. The background image - of the president of the United States, friendless, wandering the lunch table at G20 looking for any of the leaders willing to have him join them - would be heart-melting, if not so richly earned.  (Though thanks Australia… for Rupert Murdoch.)
But it all comes full circle to the weapon our enemies have used to put us into decline... fostering the failure mode that Arnold Toynbee called the destroyer of nations... the demolition of trust in our creative or knowledge castes.

More than half of the Republicans surveyed in a recent Pew poll say colleges and universities are hurting the country, a drastic shift from how the same group viewed such institutions two years ago. Alas, this article doesn't go to the heart of why. Every single fact-using profession is now warred upon by Fox and right-media... scientists, teachers, doctors, journalists, economists, judges, civil servants... and now the "deep state" FBI, Intelligence Officers and the U.S. Military Officer Corps. 
The Orwellian hate fest toward fact-people became essential, as they are the ones standing in the way of a re-imposition of 6000 years of feudalism.  And what do all fact-folks have in common?  Nearly all were influenced by the fact-using places called colleges and universities.
There's more to it, of course, and I explore the disease in more detail here: "Declining trust in our expert castes: what are underlying causes?"
To be clear, this extends to previously exempt groups of fact-users. Elsewhere I have gone on about how the FBI, CIA, and military officers used to be safe from the murdochians’ all-out war on sapient professions. Only now – prompted by the noxious “deep-state” meme -- confederates feel free to wage open war on those fact-people, too.
Civil servants have always been hated-on by the far-right (though Adam Smith extolled them as a counterweight against aristocratic cheaters.) But they were given safety by laws passed since the 1880s (by Republicans, no less.) I have a libertarian corner of me that is willing to discuss how bureaucracies are ever in need of being refreshed to prevent cloying meddlesomeness. Still, we have a civilization with rules and compromises that we agreed to by sovereign political processes.  And while politics has been (temporarily) destroyed by the murdochian-confederates, we still have a civilization to maintain, and civil servants are there to keep a complex society spinning.
Now comes an exposé in Foreign Policy revealing how alt-righters are savagely attacking this final, fact-using group. Career civil servants often endure stressful working conditions, but in the Trump White House, some of them face online trolling from alt-right bloggers who seek to portray them as clandestine partisans plotting to sabotage the president’s agenda. The online attacks often cite information that appears to be provided by unnamed White House officials or Trump loyalists.
“The trend has unnerved the career intelligence analysts, diplomats, security experts, and military officers who are accustomed to operating outside the political arena,” write the authors Brannen, de Luce and McLaughlin.
The anecdotes in this article are deeply  disturbing. But above all they are indicative of the full breadth of this war upon any semblance of objective reality or sapience in American life or governance. The smart bomb question that I ask everyone to use, when they confront their mad-right-confederate uncles (or better-yet, their aunts, who might yet be swayed) is: “Can you name for me one fact-centered profession of high knowledge and skill that is not under attack by your cult?”
As it happens, there are two remaining groups who both have some degree of intellectual accomplishment, and are utterly exempt from the right’s War on All Smartypants.  They are:
Doctors of Divinity
… and…
… members of the CEO-WallStreet-Inheritance caste.
Both groups are beneficiaries of staggeringly huge tax breaks that they extort from us all, via dependent politicians. Both have everything to win, if all the fact-users are destroyed, or at least crushed into submission.

Both have helped to bring about the long-delayed Decline of the West.

David Brin Ph.D. is a scientist and best-selling author whose future-oriented novels include Earth, The Postman, and Hugo Award winners Startide Rising and The Uplift War. David's newest novel - Existence - is now available, published by Tor Books."


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