« The Language of the Lame Duck Pardon Amendment
Mike Rappaport
| Main | Caroline Mala Corbin: Justice Scalia, the Establishment Clause, and Christian Privilege
Michael Ramsey »

02/22/2017

Mark Tushnet on President Trump and the 25th Amendment
Michael Ramsey

At Balkinization, Mark Tushnet: The 25th Amendment Option: Law and Politics.  On interpreting the 25th Amendment:

 [The 25th Amendment provides that when] the Vice President and a majority of the Cabinet declare that the President is "unable to discharge the powers and duties of his office," and send that declaration to Congress, the Vice President immediately becomes Acting President. The (now not quite) original President then can send his own declaration to Congress, "Yes, indeed, I'm able to discharge the powers and duties," and he becomes President (again) -- unless the Vice President and a majority of the Cabinet send another declaration, "No he isn't." within four days. At that point Congress has two days (if in session) to determine by a two-thirds vote in both Houses that yes indeed he is unfit. If the vote goes against the President, the Vice President becomes Acting President (apparently until the end of the original President's term -- so Pence would have the title Acting President, not President).

The legal part of all this is, What does "unable to discharge the powers and duties" mean? The clear intention of the Amendment's drafters was to deal with situations of physical and mental disability (Garfield for the eleven weeks between his being shot and his death, Wilson after his stroke). But that's "expected applications" originalism. The text is compatible with an interpretation in which "unable" means "unfit by demonstrations of sustained and serious failures of temperament" (or something along those lines). Another way to put it is that "unable" should be interpreted in a way just short of Gerald Ford's "high crimes are whatever a majority of the House think they are" standard: If there's a reasonable case to be made that the President is unable to discharge, etc., according to some reasonable understanding of "unable," the 25th Amendment is satisfied.

This is emphatically not how textualist originalism works.  True, "unable" can have the figurative meaning "unfit" or "not able to perform effectively" in some contexts (he's "unable" to play quarterback because he throws a lot of interceptions).  But it also (and I would say more commonly) means literally "not able" -- that is, not capable of doing the thing in question because of an absolute impediment (he's "unable" to play quarterback due to a broken leg).

The question is, which meaning would a reasonable person at the time of enactment more likely give to the word as it is used in the 25th Amendment, taking into account its history and context?  The question is not whether one meaning "is compatible" with the text; the question is which meaning is more likely.

To answer this, we can consider (as the post indicates) the background that gave rise to the amendment, namely the situation of presidents who were literally "unable" to function as president (not just doing so poorly).  We can also consider the impact of the amendment if it did mean "unfit" (which would be a substantial constitutional innovation, in effect extending impeachment from "high Crimes and Misdemeanors" to general lack of competence) versus the impact if it meant only literally unable (a minor adjustment in the case of unusual circumstances).  And we can consider whether people at the time of enactment talked about it only in the latter terms, or if they also saw it as a check against unfit presidents.

Professor Tushnet derides this approach as "original expected applications" though I might think it better described as "purpose."  I agree that for an original public meaning originalist the touchstone is the text, not the purpose or the expected application.  But purpose and expected application, although they cannot override text, are important to deciding on the meaning of text.  Where a word is ambiguous (that is, it has two possible meanings, as here) they are indications of what meaning was understood.

My guess is that looking at the history would show the "unfit" meaning is not even "compatible" with the original meaning of the amendment -- given the significance of the change, if no one at the time is recorded as advancing the "unfit" meaning, that's pretty strong evidence that it was not the original public meaning.  But again, the question is not whether the "unfit" meaning is "compatible" but whether it is more likely than not to have been the original meaning.  Once the question is posed this way, I can't imagine the answer is at all in doubt.