Platt Perspective on Business and Technology

Donald Trump and the stress testing of the American system of government 9

Posted in social networking and business by Timothy Platt on March 24, 2017

This is my 14th installment to a now-ongoing series of postings in which I seek to address politics in the United States as it has become, starting with the nominations process leading up to the 2016 presidential elections (see Social Networking and Business 2, posting 244 and loosely following.) And this is also my 9th installment here since the inauguration of Donald Trump as the 45th president of the United States, and with many already deeply concerned as to his competency for holding office – and at just 64 days since his swearing into office, counting January 20, 2016: his inauguration day as his day one as president.

I have been at least relatively systematically discussing both Donald Trump and his presidency in this series, and certainly since its Part 6 posting as first went live one month after Trump’s being sworn into office. And I have been discussing both president Trump’s overtly apparent mental health challenges, and his impossible to ignore conflicts of interests and other potentially grave entanglements and actions, that would suggest possible and even likely malfeasance on his part:

• The first of which might invoke the 25th Amendment to the United States Constitution and its Section 4 and an at least temporary removal from office due to incapacitation,
• And the second of which might invoke Article 2, Section 4 of the Constitution and removal of office for having committed at least some combination of treason, bribery, or high crimes and misdemeanors as specified as impeachable cause there.

And in the course of that narrative, I have discussed the types of evidence that would be considered under both circumstances, and pertinent constitutional law and historical precedent, and the societal context that all of this is playing out in.

I have explicitly if briefly discussed the 25th Amendment, Section 4 side to this here, and particularly in Part 8 and Part 9 and the issues of arriving at and acting upon a finding of incapacitation in being able to carry out the duties of office due to mental health challenges, as they would arise in addressing the Trump presidency and its growing chaos. And I have explicitly if briefly discussed the Article 2, Section 4 side of this here too, and particularly in Part 12 and Part 13.

In that, I explicitly addressed what the US Constitution says in Article 2, Section 4, in Part 12 of this series. And I went on from there to offer an in-the-news and widely known evidence-based narrative in this series’ Part 13 that would most likely lead to impeachment proceedings if Congress were to take action on the specific behaviors and issues raised there. And I couched that in terms of the challenge that members of Congress would face when having to separate out incapacitation challenges, malfeasance charges, and simple incompetence from each other in reaching specific legislative decisions and taking specific action. And this leaves me with one other option, also included in the 25th Amendment, that I have commented on and offered concluding judgment on as to its viability here, but without fully explaining what it is. I have intended to address that omission in this series, and do so here, more fully explaining what this constitutional text says, and how it has actually been applied historically as that has created precedent for any future action that would invoke it.

At the end of Part 13, I said that I would turn here to:

• Reconsider some relevant case in point history that might shed further thought on what we currently face here
• And how it might be resolved and through constitutionally specified mechanisms governing the succession of power for high ranking federal government officials,
• Or through more strictly political means
• Where at least consideration of both legal and political factors is sure to enter into whatever happens regarding this, over the next months and year.

And I begin addressing those points with a fuller discussion of Section 3 of the 25th Amendment. And I begin that by at least briefly explaining how and why this constitutional amendment came to be as a whole.

One of the earliest direct legislative predecessors to this amendment was first proposed as a possible legislative solution to presidential succession in 1963, as the Keating–Kefauver proposal, and with that developed and refined over a period of months up until Kefauver’s death in August of that year. And the pertinent text of that proposal as ultimately formulated read:

• “In case of the removal of the President from office or of his death or resignation, the said office shall devolve on the Vice President. In case of the inability of the President to discharge the powers and duties of the said office, the said powers and duties shall devolve on the Vice President, until the inability be removed. The Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then be President, or, in case of inability, act as President, and such officer shall be or act as President accordingly, until a President shall be elected or, in case of inability, until the inability shall be earlier removed. The commencement and termination of any inability shall be determined by such method as Congress shall by law provide.”

The possibility of incapacitation in ability to carry out presidential duties, drove New York Senator Kenneth Keating and Tennessee Senator Estes Kefauver to propose this measure. But their proposal did not address other succession considerations, such as provision of a process for replacing a vice president who might become incapacitated. This proposal did not consider or address what could possibly become more wide-ranging order of succession requirements, or even just single position succession requirements outside of the Oval Office itself. And this was a proposal for creating new law through more usual legislative processes, and not one of drafting a possible constitutional amendment per se.

The assassination of president John F. Kennedy on November 22, 1963 prompted Senator Birch Bayh and Representative Emanuel Celler to offer what became a proposed constitutional amendment to more widely address succession in office issues and processes. After going through the House and Senate and reconciliation processes to create a single final version that was acceptable to both chambers of Congress, their proposal: the Bayh–Celler proposal was ratified by Congress on July 6, 1965. And this was sent for ratification vote by the states. Nebraska was the first to so ratify on July 12 of that year and Florida was the 47th to so ratify on May 25, 1967 and when a sufficient majority of states had voted to approve it, the Bayh-Celler proposal became the 25th Amendment to the United States Constitution.

The 25th Amendment as a whole was initially promoted, drafted and enacted into law in response to a growing awareness of need for clarification and process of succession in presidential and other senior federal governmental positions, and particularly in the event of possible catastrophically disruptive events. It is essentially certain that the dangers faced and avoided during the Cuban Missile Crisis, played a role in shaping this constitutional change and in pushing it through. And the fact that the president of the United States who led the country through that crisis was suddenly, violently killed in office himself had to have added extra urgency to that effort.

There were no conceivable ways in which an enemy power could have in effect suddenly decapitated the United States government when the founding fathers of that nation first drafted the Constitution that is now in place. So they never saw pressing need to address this type of challenge then. The advent of nuclear weapons changed all of that, raising the possibility of a sudden and even widespread loss of leadership in the most senior ranks of the American government. And the assassination of Kennedy and the manner in which that so publically took place, significantly helped to change that perception too.

I have specifically focused on Section 4 of this amendment to the Constitution in this series up to here, as noted above and particularly in Part 8 when addressing the text of the amendment itself. So in keeping with the intended focus of discussion here, I will turn to and primarily consider its Section 3, which reads:

• “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 now constitutionally specified process has been invoked on five separate occasions since its final ratification as an amendment, and without any of the conflict or tension that would arise from a 25th Amendment, Section 4 forced removal from actively serving in office due to incapacitation, or an Article 2, Section 4 impeachment proceeding. The first such instance occurred on October 12, 1973 when President Richard Nixon nominated Representative Gerald Ford to serve as vice president, two days after the (semi-voluntary) resignation of Spiro Agnew as vice president when he was imminently about to face impeachment charges if he did not step down. The US Senate voted to approve this nomination by a vote of 92 to 3 on November 27 and the House voted in favor of this too, by a vote of 387 to 35 on December 6, 1973 and Ford was sworn into office that day before a joint session of Congress.

The second occasion in which this constitutional mechanism was invoked arose when Richard Nixon resigned as president and Ford was approved and sworn in as acting president of the United States, on August 9, 1974. And the third took place when Nelson Rockefeller was made vice president to replace Ford in that position. Once again, this was carried out without significant conflict or dissention, and with a Senate vote of 90 to 7 to confirm, and a House vote of 287 to 128 to confirm too. The Senate vote took place on December 10, 1974 and the House vote was taken nine days later, and Rockefeller was sworn into office later that day in the Senate chamber.

The other two occasions in which this has been invoked arose when an acting president was facing short-term medical challenge and the serving vice president stepped in for brief periods of time to maintain continuity of office. The first of these occurred on July 12, 1985 when then vice president George H.W. Bush temporarily assumed presidential authority when president Ronald Reagan underwent a colonoscopy that led to his having surgery to remove a pre-cancerous lesion. The second occurred when vice president Dick Cheney temporarily assumed presidential authority when president George W. Bush underwent a colonoscopy, on June 29, 2002.

Interestingly, neither the 25th Amendment, Section 3 nor Section 4 were formally invoked when John Hinckley Jr. shot president Reagan in the chest on March 30, 1981. This attack led to the president requiring immediate emergency surgery with full anesthesia and that was followed by a recovery period that started in intensive care. President Reagan officially remained acting president throughout all of this and actively began serving in office again from his hospital bed, when he was mentally alert again after coming out of surgery and intensive care, and after being been found to be medically stable again.

There are at least some levels of risk associated with any procedure that calls for sedation, and that applies to colonoscopies as much as to any other. But president Reagan could easily have died that day and he was in fact incapacitated as far as actively functioning on a here-and-now basis as president, and for several days after the shooting. But for political reasons, the 25th Amendment was not resorted to. Reagan saw it as crucially important that the public see him as not having been compromised in his ability to serve. With a bullet in one of his lungs and broken ribs from the shooting, he even forced himself upright so he could walk into the hospital emergency room for the cameras, and under his own power to prove that – where he promptly collapsed once out of view inside. He smiled and waved with his good arm while walking in, and he formally retained the power and authority of office and even when he was in fact unable to exercise his responsibilities of office – and in explicit refusal to accept 25th Amendment, Section 3 terms or processes, and even for just temporary succession of office as being binding upon him.

The possibility of incapacitation and the need for securing an orderly succession of power and authority led to this amendment and shaped the form that it has taken. And forces and possibilities that arose after World War II created a need for such a constitutional process, and particularly with the advent of nuclear weapons. But there have been other instances from before then, where such an amendment would in principle have been needed. Two such instances come immediately to mind. The first comes from the one month presidential administration of the 9th president of the United States: William Henry Harrison. It was and I add still is tradition that a president be inaugurated into office outdoors, and that they give their first public speech in office: their inaugural address there too. Harrison was sworn into office on a brutally cold winter day and he gave a very, very long inaugural address, and without wearing a winter coat or otherwise protecting himself from the elements. He wanted to display his still-robust health. And he contracted pneumonia and died in office 31 days later – and without ever actually serving in office as he was too ill to ever actually carry out any of his new responsibilities there. His vice president, John Tyler succeeded him, and in fact functioned as the de facto president for the most part during Harrison’s lingering illness, for what presidential duties were carried out. But the country did not in fact have an actually officially recognizable functioning president for those 31 days because Harrison was still alive; he was still breathing so he was still president and even if in name only. This succession in office raised a number of very significant questions that were not in fact addressed, and certainly in anything like a formal manner until the passage of the 25th Amendment. Harrison died on April 4, 1841, so that resolution took just over 126 years to reach.

The second such instance, and arguably the more serious and I add consequential of them, given then current world events, occurred during the administration of Woodrow Wilson. He suffered a significantly incapacitating stroke while in office on October 2, 1919 (see When a Secret President Ran the Country.) Wilson has suffered what in retrospect was almost certainly a series of brief but significant transient ischemic attacks (TIAs) with their temporary interruptions of blood flow to parts of his brain, and possibly at least one minor stroke in which blood flow did not resume in time to an area of his brain affected in that manner. And he kept all of this secret as these incidents occurred in the months leading up to this more massively significant event. Then on October 2nd, he had the much more massive stroke that effectively paralyzed his entire left side and at least partly blinded and otherwise limited his right side too. There was no constitutionally specified and mandated process in place for addressing any of this. The vice president, Thomas R. Marshall and Wilson’s cabinet officers were largely kept in the dark as to what had happened and even after this more massive stroke, and were not brought in to help cover for Wilson’s sudden inability to function in office and even then.

Evidence strongly suggests that the first lady, Edith Wilson, aided by a small and select group of advisors who president Wilson and she trusted, effectively ran the executive branch of government and for months, and with Edith making the final executive decisions there and serving as the de facto president of the United States as a result. Who was the first woman president of the United States? Edith Wilson would probably qualify as having effectively served in office, in answer to that question.

I make note of these two events here, and I add the Reagan shooting incident as they all raise a significant question as to who would make ongoing presidential decisions in the White House if and when a sitting president is incapacitated and either physically, mentally or both. To clarify my noting both physical and mental there, evidence indicates that Wilson suffered a significant personality change when suffering his more massive stroke. And I add that his judgment was affected too, as well as his body. Who would in fact functionally carry out the roles of office of a president of the United States, and for duties that he has proven himself to be fundamentally incapable of performing but that are essential to the running of the country, absent actually following a formal succession process such as is laid out in the 25th Amendment? And who might in fact be doing that now and for key areas of decision and governance, – and with a failing, chaotic Trump presidency to bring that question into sharp focus?

I have written recurringly of how difficult it would be to actually invoke and apply the 25th Amendment and in either its more voluntary Section 3 or involuntary Section 4 terms, in the course of writing this blog. Ronald Reagan actively opposed invoking this when he was shot. If this amendment had been in place, it is possible that both Harrison and Wilson would have embraced its Section 3 – but Wilson neither liked nor trusted his vice president so he might very well have fought any such action and certainly on more voluntary, Section 3 terms – forcing Section 4 mandated Congressional action, which would have been largely politically driven. Remember that this would not have just meant moving Wilson out of office; it would have meant making his vice president the serving president of the United States too, and that resolution would have been contentious at best.

That historical narrative has its parallels in the context that we face now with Donald Trump serving as president and with Mike Pence serving as the vice president who would replace him. And many of those who oppose Trump as president, fear Pence a lot more as he is organized and capable of taking organized action, and in ways that Trump himself cannot achieve, while favoring essentially the same goals that Trump so bombastically offers and promotes.

I am going to continue this discussion in a next series installment where I will return to explicitly consider Donald Trump and his actions and his apparent reasons for them, and both as a presidential candidate and while in office as president. And I will do so from the perspective of the organizing framework that I have been developing up to here in this series. Meanwhile, you can find this and related postings at Social Networking and Business 2, and also see that directory’s Page 1.

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