As expected, Speaker Pelosi's 25th Amendment talk today was on introducing the Raskin bill. This would create a bipartisan commission to substitute for the Cabinet in deciding when the president is "unable" under §4.
Tweeters are confused about what this means. Some notes:
1/5
* No one thinks this legislation will pass now. If it does, Trump would surely veto it.
* Legislation like this is provided for in §4. It says that the VP and Cabinet invoke §4, but that Congress can legislate a different body to substitute for the Cabinet in that process.
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* The rest of §4 would still apply: VP would need to sign on before §4 could be invoked. If the president declares he's able, he'd retake power in time unless the commission, VP, and 2/3 of House and Senate agreed he's unable. The commission wouldn't have unilateral power.
3/5
* §4's "substitute body" provision was part of a compromise. Some in Congress wanted §4 to empower Congress to legislate the §4 process, rather than hardwiring a role for the VP and Cabinet. The "other body" provision was to placate them, but it has sat dormant for 53 years.
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If you have questions on this or anything else 25A4-related, you can tweet me, DM me, or get my comprehensive book (amazon.com/Unable-Politic…).
To be clear, I am NOT interested in Trump's or Biden's particular cases, just about the history and processes of 25A more generally.
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I checked the data on previous Supreme Court vacancies near an election. Here's what I found:
Latest vacancy filled before the election: June 10, filled July 24. This was exceptional, though: Justice Hughes resigned in June after the Republicans nominated him for president.
1/8
That outlier aside, the latest is March 23 (Waite), filled July 20.
6 other vacancies arose later than that. Of those, 5 were only filled after inauguration. The 6th was filled soon after an election in which the president was reelected.
But that's not the whole picture.
2/8
10 vacancies arose during the lame-duck (betw. election and inauguration). Of them:
4—filled after inauguration.
3—filled during the lame-duck after the election kept the president's party in power.
3—filled during the lame-duck after the election shifted party control.
3/8
I see confusion on Twitter about pardons b/c of Roger Stone. Here's a thread—tell a confused friend.
This is for those who 1) didn't think Trump had the power to do this (wrong); or 2) think he shouldn't have it (misses some points).
("Pardon" here means pardon OR commute)
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* "I thought impeached presidents can't pardon anyone"
Impeachment by itself does nothing to a president's powers. Only a conviction affects them. It's all or nothing.
Trump pardoned several people back in February, and Clinton and Johnson pardoned plenty post-impeachment.
2/7
* "I thought impeached presidents can't pardon people for crimes that the impeachment was about"
A widely tweeted column confidently claimed this, and there is an impeachment exception to the pardon power. But the standard interpretation of that exception is that pardons…
3/7
The main reason that one sees so many tweets about the 25th Amendment (§4) is that so many people think it works like this:
Step 1: Someone invokes the 25th Amendment.
Step 2: The president is removed from office.
But it doesn't work like that.
1/6
First, it requires incapacity. Not impairment, ineptitude, or extreme badness. Full-on incapacity. That's a high bar.
Second, it's invoked by the VP and Cabinet. 25A's drafters thought they'd be reluctant to move against their boss. For the drafters, this was a plus.
2/6
(Don't say "25A is unavailable b/c the whole Cabinet is 'acting.'" Only 1 of the 15 is acting, and even if there were more it wouldn't pose a problem.)
Third, if 25A4 is invoked, the president isn't removed. He can come back—and 25A4 stacks the deck heavily in his favor.
3/6
Seeing speculation on double presidential vacancies and the 25th amd. Time for a thread.
1. 25th amd. §§ 3-4 transfer power to the VP when the president is "unable," and transfer it back when he recovers. But they don't apply when a VP acting as president becomes "unable."
1/4
That is, 25A doesn't operate to transfer power further down the line of succession. As my book (tinyurl.com/y4r3xlhy) describes, the amendment's drafters wanted to keep it simpler.
But Article II and the line of succession statute still apply. My book explains how we...
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would likely proceed if the pres. and VP were both "unable": the Speaker would invoke Article II and try to use a process that replicated 25A as closely as possible (Cabinet majority; in a dispute, 2/3 congressional majorities needed to back the Speaker) to legitimize it.
3/4
* The piece first said "many scholars agree" (as reproduced in Politico's tweet). That changed to "some scholars." Then the phrase was removed entirely.
Revisions are good—high praise to author Corey Brettschneider for that—but they should be noted. Do better, Politico.
2/8
* The piece relies on Madison's suggestion that the House can "suspend" a president pending trial. But the House didn't purport to suspend Trump—for good reason; Madison's idea is an outlier. And even Madison didn't suggest a suspension would survive a Senate acquittal.
3/8
Roger Stone’s case put pardons back into the news, so there are lots of questions—and wrong answers—about pardons circulating on Twitter. A thread is in order.
1. A pardon does not necessarily have a legal effect of declaring/admitting guilt.
Johnson and Clinton issued heaps of pardons after being impeached. The pardon power has an impeachment exception, but it’s point is to separate the impeachment and criminal processes and limit pardons’ effect to the latter.
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3. Impeached presidents can still be pardoned for the criminal consequences of the things they were impeached for.
Robert Reich baselessly asserted otherwise in an op-ed that led to a lot of people on Twitter being misled. Here is a longer thread that debunks Reich’s error: