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Brian Kalt

@ProfBrianKalt

5 Nov 20

The possibility of Biden being president w/ a Republican Senate has prompted many tweets about "acting" Cabinet secretaries. Almost every one I have seen gets two things wrong.

A corrective:

1. Presidents can't just name "anyone they want" as an acting Cabinet secretary...

1/4

Under the FVRA, which would cover most acting secretaries, an acting secretary must be either (1) the "first assistant," i.e., deputy secretary; (2) in some other Senate-confirmed position; or (3) someone who worked in the department for at least 90 days in the last year.

2/4

That significantly confines a new president's choices. For instance, while President Trump waited until April 2017 to get Sonny Perdue confirmed as Secretary of Agriculture, the acting secretary was an Obama holdover: 25-year Department of Agriculture veteran Michael Young.

3/4

Read 4 tweets

Brian Kalt

@ProfBrianKalt

27 Oct 20

With today's chatter about vote-counting processes, declaring winners on Election Day or not, etc., I want to recount a crazy, revealing story from the 2000 election that most people have forgotten about or never knew . . . because it happened in New Mexico and not Florida.

1/7

New Mexico saw about 600,000 votes cast. On election night, Gore led by about 5,000 and the networks initially declared him the winner.

Late Wednesday, a programming error was discovered that had excluded 67,000 votes from totals in Bernalillo County (the biggest county).

2/7

With those ballots counted (along with other missing ones that turned up on Thursday), Bush took a 4-vote lead. His lead grew a bit as counties settled minor discrepancies and re-canvassed.

But on 11/14, a week after election night, there was another dramatic reversal.

3/7

Read 7 tweets

Brian Kalt

@ProfBrianKalt

9 Oct 20

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.

2/5

* 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

Read 5 tweets

Brian Kalt

@ProfBrianKalt

19 Sep 20

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

Read 11 tweets

Brian Kalt

@ProfBrianKalt

11 Jul 20

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)

1/7

* "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

Read 8 tweets

Brian Kalt

@ProfBrianKalt

19 Apr 20

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

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