"This is not an Election, it's an intervention"
This is a long diary and it goes into terrain which should be speculative but, given the events we have to deal with every day, aren't. "What do you do with a crazy President?" has been the staple of Hollywood and pulp thriller novels for years, from "Nixon" to "Dave". With differing results.
But it wasn't only endangered Republicans who have been calling for Rumsfeld's ouster who may have blanched. Andrew Sullivan, the conservative writer who was once a key media supporter for the Iraq war, denounced the latest Bush statement on CNN on Wednesday night, stating that the president is so delusional, "This is not an election anymore, it's an intervention."Sullivan said the president was "so in denial," comparing the Rumsfeld endorsement to applauding the job FEMA's Michael Brown did on Katrina: "It's unhinged. It suggests this man has lost his mind. No one objectively could look at the way this war has been conducted, whether you were for it, as I was, or against it, and say that it has been done well. It's a disaster.
So, the question devolves to "what is to be done?" (I know, every question, parsed far enough, comes to that, but please give me a little slack here).
Let's assume Bush is, in fact, "unhinged" or "has lost his mind". What next? Are we stuck with a madman at the wheel?
The Twenty-fifth Amendment provides:
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
OK, we all know this one works.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Likewise, Gerry Ford and Nelson Rockefeller and the post-1974 Democratic wave Congress proved this one works.
Now, the tough part.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
This one presupposes the President is sufficiently compos mentis to understand and acquiesce to giving up power while incapacitated. We also know this one works, because it's been used any number of times when Presidents need surgery or treatment which requires some sort of anesthesia. Reagan did it for his colon surgery, I think Bush I did it for some surgery or other, and likewise for Clinton.
As to being mentally or psycholgically unable to discharge the duties of the office (and setting aside personalities), I'll say this section does cover that situation where the incumbent has sufficient capability to recognize he/she should not be "operating a country while incapacitated". But, anyone who's tried to persuade a friend to give up their keys after imbibing knows that the level of self-awareness and integrity required doesn't come often. Picking up personalities, there's little or no chance the current occupant of the office will voluntarily turn over the reins. His delusion is that he thinks (a) he's right and (b) God wants him to do this.
Now, even tougher. For ease of analysis, I'm going to separate this section into its constitutent paragraphs. Really, the second paragraph is more procedural than substantive, at least as far as my analysis here today is concerned. I'm looking more at the first paragraph.
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.
Like every tool invented by the hand of man, this paragraph can be used for salutary or evil purposes - depending upon the character of the hand and person behind it. In this context, the Vice President and 8 Cabinet Secretaries (I think there are 15 principal departments, you want to dispute, do the math) can get together and decide to declare the President unable. So, this institutionalizes a cabal - whether the cabal exercises its power from motiviations or for purposes salutary or not "depends". It does depend on the participation of the Vice President - without him/her, it goes nowhere.
Which leads to some interesting questions. Would Deadeye ever do this if The Unit was just plain nuts(, as opposed to bed-ridden comatose or something similar)? I think not. Even though Deadeye loves being The Unit's puppetmaster, the last thing he wants to do is be the front man. The Dark Lord operates best in the shadows. And, frankly, in his present position he has the best of both worlds. He gets to pretty much control who, what, when the President sees, hears from, reads and consults, yet as Vice President he can (and does, when relevant to his purposes) claim he's just the Vice President and therefore not subject to the many laws which govern the conduct of the President. Things like disclosure laws, ethics laws, all the rest.
Like in a sci-fi program, he's both in this dimension and not, at the same time. That has a lot of benefits for someone as slippery and determined as he is, and he's not about to give that up.
So, regardless of anything else the Democrats' Hundred Hour Plan contains, they must enact laws which unman the Office of the Vice President and eliminate the netherworld from which he's operated these six years. And, since the Admin can get away (so far) with retroactively making torture immune from criminal prosecution and strip courts of jurisdiction, these changes to the office of the Vice President should be retroactive, and Deadeye should be specifically denied standing to challenge them.
Practitioner's hint: To strip jurisdiction and standing, Congress should use the exact same language as the Torture Act does and create a strong legislative history explicitly tying these jurisdiction-stripping and standing-eliminating provisions conceptually. Make it clear that, if a Court decides Deadeye can bring a challenge, then the jurisdiction and standing stripping provisions of the Torture Act must also fall.
Can anyone bring an incompetency action against the sitting Preznit? I don't know. First, the whole issue of state incompetency law - and which state's law, his "home" state's or D.C.'s would apply - is a profoundly local one. While the Supremacy Clause does not speak directly to the issue, I speculate there likely would be a significant (and heretofore unresolved) issue about whether a state (or local D.C.) court has the power to put the Preznit on trial for his competency.
The standards, generally pronounced as "whether the alleged incompetent is a danger to himself or others" and "whether the alleged incompetent is capable of managing his affairs and understanding the implications of his actions" are both general and seemingly vague. These standards are also generally applicable nationally, though the exact verbiage may vary. In practice, though, the person has to be pretty far gone, or pretty dangerously violent, to be found incompetent by a court. Many (if not all) states require proof by "clear and convincing evidence", a pretty demanding standard. I opine it's pretty unlikely any court would find The Unit to be incompetent - regardless of his job (holding a regular job itself militates against finding one incompetent....). And, for that matter, "being dangerous to others" can be argued to be a part of the job of Preznit - gotta keep them rogue states in line.
Back to the cabal. The salient feature of this administration has been its unanimity and solid front. They all drink the same Kool-Aid,
Moreover, even if Bushie loses his job, then we get President Deadeye.
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.
The rub comes in, in how it is to be used. As the Annotation provides, this amendment was proposed to the States following Kennedy's asassination, a fortiori in light of Johnson's history of heart trouble. The most vexing problem seen was not of death of a President - that had happened and been dealt with - nor, for that matter, death or resignation of a Vice President, which had also happened. As the Annotation makes clear, the most vexing issue was of Presidential inability. Citing the precedents of Garfield, dying after 80 days in a post-shooting coma, and Wilson's post-stroke devolution to being an invalid for the last 18 months of his term, the issue of Presidential inability was paramount. As the annotation said, this was the most vexing problem:
with its unanswered questions: who was to determine the existence of an inability, how was the matter to be handled if the President sought to continue, in what manner should the Vice President act, would he be acting President or President, what was to happen if the President recovered.
My recollection of the history of the amendment indicates a major concern was the speed with which events happen in the Jet Age and the Atomic Age. International affairs that once took weeks or months to go from saber-rattling to open warfare by 1963 could go that far in less than an hour. And, it needs be remembered, there was significant concern when LBJ took office, that Kennedy's being shot was just a first step of some Soviet plot to take over the world. The security issues were not dissimilar to those which led to The Unit spending more than a few hours hiding out in Louisiana, Nebraska, and on board Air Force One on 9/11/01. (I don't recall ever criticizing that aspect of his behavior; the only thing I would have done differently would have been to get the word out immediately that he was safe and airborne, pursuant to pre-planned continuity of government plans, and leave it at that.)
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