Tuesday, January 09, 2018

How far gone must a president be to be "unable to discharge the powers and duties of his office"?

by Michael Dorf

Yesterday I discussed the seeming oddity that public debate about impeachment and the 25th Amendment has lately treated the two constitutional mechanisms as interchangeable. I concluded that there is actually an area of substantial overlap between the two, analogizing to the overlap between conduct that could give rise to either (or both) criminal liability and civil confinement based on dangerousness due to a mental disorder. Today I want to ask another question involving the 25th Amendment: How far gone must a president be to be "unable to discharge the powers and duties of his office"?

An instructive article by Jeffrey Rosen in The Atlantic last May summarizes the legislative history of the 25th Amendment and the debate about its meaning. Some people have argued that the Amendment can only be used in cases in which the president is all but dead--comatose or floridly senile. Quoting Birch Bayh, the chief architect of the Amendment, and others, Rosen pushes back. He explains that this is far from a settled question. The phrase "unable to discharge the powers and duties" of office, Rosen and the scholars he cites persuasively argue, was deliberately left open-ended.

Indeed, to my mind, the text of Section 4 of the 25th Amendment confirms that the Amendment can be used in cases of mental infirmity that do not rise to the level of all-but-dead. Section 4 sets out a mechanism by which the vice-president, the Cabinet, and two-thirds of each house of Congress can override the decision of a president to contest the prior determination of his vice-president and Cabinet that he is unfit. A comatose or so-far-senile-as-not-to-know-what's-up president would not have the wherewithal to resist the initial declaration of unfitness in the first place.

Accordingly, it looks like the 25th Amendment can be used for someone who suffers from a mental or emotional impairment that makes him pursue ruinous projects even if it does not render him effectively an infant. To use historical examples, presumably everyone would agree that the 25th Amendment could be invoked were a president to deteriorate to a condition like that of Henry VI of England during his periods of essentially complete non-responsiveness, but under the best reading of the provision, it also applies to a president who has enough of his wits about him to take steps to remain in office but not enough to discharge its powers and duties responsibly--a Caligula of a president, if you will.

To be sure, I suppose we can imagine a scenario in which a Henry VI-level-impaired president can sign a piece of paper declaring himself fit in response to the VP and Cabinet's declaration to the contrary, perhaps if the Henry-VI-level-impaired president is led to do so by a very close adviser who wishes to keep the president in office so that he, the adviser, may rule through him as the power behind the throne. Thus, we can imagine a scenario in which the opportunity for a presidential response followed by a contest in Congress envisioned by Section 4 would operate, even for a near-totally-impaired president.

However, the scenario I have just sketched is so far from what we might imagine is the standard operation of the Section 4 contest, that it hardly counts as the only scenario in which such a contest was thought to be possible. Section 4 thus really does confirm the view that a Caligula-style impairment, and not just a Henry VI-or-worse-style impairment, can qualify for a removable disability.

Finally, some readers might think that this whole discussion is beside the point because the question whether a president qualifies as able or unable to discharge the powers and duties of his office is a non-justiciable political question, so that the decision of the VP, the Cabinet, and a super-majority of Congress is final. I agree that the question is non-justiciable. However, that doesn't mean that there isn't an important constitutional question here. Just as we argue over what counts as "other high crimes and misdemeanors" that can be the basis for impeachment, notwithstanding the fact that courts don't review impeachment-and-removal decisions, so we can properly argue over what a conscientious VP, Cabinet member, or member of Congress should deem a disability that renders a president unable to discharge the powers and duties of office.