Impeachment- a Citizen's Guide

by Cass R Sunstein

  I still have no idea. As the reporter waited for an answer, time seemed to stand still. What to say? Instead of confessing or falling apart, my mind seized upon two words that I had learned from old television shows: “No comment.”

  What the Amendment Is All About

  As it turned out, Reagan recovered well, and no one needed to invoke the Twenty-Fifth Amendment. But the tale helps to show what the amendment is all about. Added in 1967 in the aftermath of the assassination of President John F. Kennedy, and sometimes described as a memorial to the fallen president, the amendment explains, in its first section, what happens if the president dies, is removed, or resigns: the vice president takes over.3 Its second section specifies what happens if the office of the vice president becomes vacant: “The President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”

  All that is straightforward. The remaining two sections deal with the much harder cases of incapacity. The test is simple, deceptively so: the president’s inability to discharge the powers and duties of the office.

  Importantly, the president himself is given the opportunity to declare that inability. A president who has been severely wounded, or who is grappling with some debilitating health problem, can transfer power to the vice president, either permanently or during the time of his convalescence. But whether or not he wants to continue to serve, the president can be bypassed. That’s important, because a president might be unable to make a declaration (perhaps because he is unconscious), or even if he is capable of doing that, he might be unwilling to acknowledge the existence or the extent of his disability. If the vice president concludes that the president cannot discharge the powers and duties of the office, and if a majority of the cabinet agrees, the presidency is over—unless and until the president protests and potentially causes a contest in Congress.

  Recall just who gets to bypass the president. The relevant part of section 4: “the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide.” I will return to these critical words. They show a radically different choice from that made by the framers of the impeachment clause, back in Philadelphia.

  One Word

  The central question of the Twenty-Fifth Amendment, of course, is the meaning of one word: “unable.” (Note that under the third and fourth sections, the standard—“unable to discharge the powers and duties of his office”—seems to be the same.) On the basis of the amendment’s text, we can imagine a continuum of understandings. At one extreme, a president is “unable” only if he is literally unable to make decisions—perhaps because he is not conscious, perhaps because he has suffered a severe mental breakdown of some sort. Call this Twenty-Fifth Amendment minimalism. At the other end of the continuum, the vice president and the cabinet are authorized to declare the president “unable” for whatever reasons they like. If they say he is unable, he is unable. That’s Twenty-Fifth Amendment maximalism.

  Members of Congress were alert to the ambiguity in the text. During their debates on the constitutional text, several of them emphasized its lack of clarity.4 But they failed to offer a definition, perhaps because they could not agree on one. Nonetheless, the background of the Twenty-Fifth Amendment offers helpful guidance, especially insofar as it shows where the legislators’ attention was focused.5

  Several members emphasized four cases, three real and one hypothetical. The real ones were the prolonged deathbed experience of James Garfield, shot in 1881; the two years that Woodrow Wilson remained in office after his massive stroke in 1919; and Dwight Eisenhower’s period of convalescence after a serious heart attack and while suffering other heart problems. The hypothetical case posited a situation in which President Kennedy managed to survive the assassination attempt in Dallas in 1963, but ended up incapacitated by his injuries.

  For the legislators, the cases of Garfield and Wilson presented the precise problems that the Twenty-Fifth Amendment was intended to solve. Those cases were defining. As noted by Lewis Powell, then president-elect of the American Bar Association and later a member of the Supreme Court, their inability to carry out their duties resulted in “a virtual void in Executive leadership.”6 Senator Birch Bayh, who played a critical role in the debates, observed that in the eighty days between Garfield’s shooting and death, his “only official act . . . was the signing of an extradition paper.”7 He also pointed to the considerable control that Woodrow Wilson’s wife and doctor exerted over his schedule in the aftermath of his stroke.8

  During the discussions, some legislators focused on greatly diminished cognitive capacity, stemming from physical disability, severe psychological problems, or some other source. At one point, Senator Bayh spoke quite broadly, saying that the text spoke of “any type of inability, whether it is from traveling from one nation to another, a breakdown of communications, capture by the enemy, or anything that is imaginable.”9 Because of Senator Bayh’s central role, his statements deserve careful attention, but the words “any type of disability” seem to overshoot the mark. At another point, Senator Bayh said more crisply that “the ability to perform the job would be the prime evidence that would determine whether a president were disabled or not.”10

  That may not seem to be the most helpful formulation, because it essentially restates the constitutional text. But it does offer a purposive account of “unable”; the question is always whether he can carry out his constitutional functions. If a president’s physical or cognitive problems make it very difficult or impossible for him to do what he is supposed to do, the Twenty-Fifth Amendment should be triggered. One week before Congress passed the recommended text of the amendment, Senator Bayh and Senator Edward M. Kennedy spoke of the president’s “total disability,” understood as “physical or mental inability to exercise the powers and duties of his office.”11

  Consistent with that view, some comments pointed to situations in which “the president by reason of some physical ailment or some sudden accident is unconscious or paralyzed,” or “by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand aside.”12 But other comments suggested a somewhat broader view than might be signaled by the term “total disability.” Former Attorney General Herbert Brownell pointed to situations in which “the president might be going to have an operation” or in which “his doctors recommend temporary suspension of his normal governmental activities, to facilitate his recovery.”13 In particular, both illness and surgery were taken to be potential bases for invocation of section 3.

  Too Strong

  Congress’s focus on relatively extreme cases rules the maximalist interpretation out of bounds. The vice president and cabinet cannot just decide to declare a president unable. The context, after all, is set by the first two sections of the Twenty-Fifth Amendment, which deal with death or removal from office. That context is underlined by the obvious motivation of section 4, which is to provide a solution in cases of incapacitation. Terrible judgment, laziness, incompetence, and even impeachable acts do not justify invocation of the Twenty-Fifth Amendment.14 The amendment’s reference to the president’s inability to discharge his duties requires a very serious impairment, whether physical or mental.

  It follows that to invoke the amendment, the vice president and the cabinet have to be able to point to some such impairment. They cannot remove the president from office simply because that is what they want to do. In particular, they cannot remove him because they do not like his decisions, because he is unpopular, because he is hurting his party, because he has an awful temper, because he is going to war (or not going to war), because he is ruining the economy, because he has committed a crime or crimes, or because he is impossible to deal with. In ordinary language, they might say and even believe that he is “unable” to perform his constitutional functions, but that is not what the amendment i
s about.

  We should note here that even though Twenty-Fifth Amendment maximalism is wrong, it would probably not produce a ton of mischief. After all, the president chooses his own team, and the members of that team are likely to be intensely loyal to him. In a dramatic departure from the impeachment provision, the Twenty-Fifth Amendment lets the president’s people run the show (unless Congress decides to give the authority to some other body, and it has not yet done that). The real risk is not that the Twenty-Fifth Amendment will be invoked when it shouldn’t, but that it won’t be invoked when it should.

  If we wanted to exercise our imaginations, perhaps we could foresee some kind of coup, in which an ambitious vice president, eager to obtain power, turns out to be able to get the cabinet on his side, and thus to wrest power from a president who is not really unable to do his job. But that seems like a television show, not reality. (House of Cards, anyone?) We could also imagine a truly bizarre political context, in which a sitting president is destroying his own party’s prospects, or in which his decisions seem, even to his own people, to be so damaging and eccentric that he has to be relieved of his duties. In such a case, the argument for removing him might well seem overwhelming. But even so, the maximalist position is wrong. The constitutionally specified remedy is the ballot box or possibly impeachment, not the Twenty-Fifth Amendment.

  Too Weak

  In a similar spirit, we should acknowledge that the minimalist position is just too weak, and so it too must be rejected. That is a really important conclusion—more important, in fact, than the rejection of maximalism.

  Notwithstanding the reference to “total disability,” a president might be unable to discharge his duties even if he is not literally unable to make decisions. A serious cognitive impairment—say, a certain stage of Alzheimer’s disease—might not produce such a literal inability, but could entail a loss of memory and of functional capacity. Such a loss could easily disable a president from doing his job. In a case of that kind, the Twenty-Fifth Amendment is best read to allow the president’s team to relieve him of his responsibilities.

  We could also imagine cases of acute depression, crippling anxiety, paranoia, or otherwise serious emotional breakdown, which would also prove debilitating, even if the president is not literally unable to make decisions. The debilitation could take the form of highly erratic behavior (as some people feared in the cases of Johnson and Nixon). Or it could take the form of indecisiveness. If the condition is sufficiently severe, it could render the president “unable” to do his job within the meaning of the Twenty-Fifth Amendment.

  At least if it does not become extreme, physical incapacitation could produce hard cases. True, a state of unconsciousness, even if temporary, would justify use of the amendment, and if a strong anesthetic is administered to the president, there might also be a good occasion for its use. These points bear on routine, or less than routine, medical procedures. In 2002, President George W. Bush invoked the Twenty-Fifth Amendment, transferring power to Vice President Dick Cheney during a colorectal screening, and in 2007, he did so for a few hours when doctors removed benign polyps from his large intestine.

  A continuing inability to travel, domestically or abroad, would make it harder for the president to do his job, but in spite of one of Senator Bayh’s comments (“any type of inability, whether it is from traveling from one nation to another”), it need not render him “unable.” For Twenty-Fifth Amendment purposes, everything would depend on the extent of the incapacitation. The cases of Garfield and Wilson are straightforward, and if a president suffers from an impairment that is even close to theirs, the Twenty-Fifth Amendment is available. Physical disabilities that do not rise to that level could present tough questions.

  Easy and Hard

  Extreme unpopularity, bad character, corruption, and disastrous decisions are easy; the Twenty-Fifth Amendment cannot be triggered. That’s not what it’s about. Literal inability to make decisions is also easy; the Twenty-Fifth Amendment can and should be triggered. That’s what it’s about.

  The hard cases involve a diminished capacity as a result of a serious physical or mental impairment. In such cases, there are no hard-and-fast rules. The best solution, invited by the text of the Twenty-Fifth Amendment, is institutional: If the president’s own team points to such an impairment, and concludes that he has to go, well, then—he has to go.

  chapter 9

  What Every American Should Know

  We now have a clear sense of the fundamentals of impeachment—its relationship to the American Revolution, its place in the constitutional structure, the historical practice, and the legitimate and illegitimate grounds for removing the president from office. We know that the focus is on egregious abuses of power.

  But plenty of questions remain. Let’s ask and answer the most important ones. We’ve encountered some of them before, but crisp answers can be clarifying.

  Who can be impeached?

  The president, the vice president, and all civil officers of the United States.

  “Civil officers” is a broad term; it includes federal judges and appointed officials of the federal government, whether their positions are high or low. The attorney general certainly can be impeached, and so can the secretary of state, and so can the chief justice of the United States. (During the Obama administration, I served as administrator of the Office of Information and Regulatory Affairs, and I certainly could have been impeached.) To keep things simple, I am going to refer throughout this chapter to the president, but most of the answers would be the same for the vice president and all civil officers.

  It is generally agreed that members of Congress are not civil officers of the United States and so are not subject to impeachment. Officers of the army and navy, and other parts of the armed forces, are not considered civil officers of the United States.

  Who impeaches the president?

  The House of Representatives. It does so by a simple majority vote.

  Why did the drafters of the Constitution choose the House?

  Its members are elected every two years, and so the House is more popularly responsive than the Senate. Because republican principles put a premium on self-government, the House is the institution that gets to initiate the process for removing the president.

  Why a simple majority?

  The framers and ratifiers did not want to make impeachment too hard. Hard, but not too hard.

  Does impeachment mean that the president has to leave office?

  No! Impeachment is roughly analogous to an indictment, and then the Senate, acting as a kind of court, conducts a trial and decides whether to “convict.” If the Senate convicts the president, he is removed. If he is acquitted, he gets to stay in office, even though he has been impeached.

  A little more detail: under the Constitution, a vote in favor of impeachment moves the national debate from the House to the Senate, which can remove the president, but only by a vote of two-thirds. That is a very high threshold. Because it is so high, any impeachment might turn out to be futile, at least if it is based on a desire to remove the president from office. On some occasions, the potential futility of impeachment has probably deterred the House from proceeding even when many of its members were pretty unhappy with the president.

  To appreciate the role of the Senate in the whole process, note also that under the Constitution, the senators must take an oath, which is to “do impartial justice according to the Constitution and laws.”1 That oath is separate from the senators’ oath of office. It signals the unique gravity of the occasion. Let’s underline the word “impartial,” which suggests that the senators are supposed to act like judges, not politicians.

  If the president is impeached and the Senate conducts a trial, members of the House continue to have an important role, which is to select “managers,” who act like prosecutors. They are in charge of presenting the arguments for conviction. Because of their role, it makes good sens
e for the House to select members who are excellent lawyers. And indeed, the tradition, in the few cases that have come up, is to try to do exactly that. (The word “try” is deliberate; in the Clinton impeachment proceedings, for example, the lawyering may have fallen short of excellent.)

  What’s the purpose of this pretty complicated institutional arrangement?

  The delegates who supported the power to impeach and remove the president wanted to thread a needle. They sought to create a safety valve while also maintaining the separation of powers and ensuring that the president would not be Congress’s lackey.

  The “high crimes and misdemeanors” threshold was the first way to promote those goals. The second was to create institutional safeguards, assuring that a president would not have to leave office unless there were something close to a national consensus that he should do so. The two-thirds majority in the Senate is an important and strong safeguard—as the Johnson and Clinton cases reveal.

  Because the Senate, whose members enjoy six-year terms, is the less populist body, the framers assumed that it would be the more deliberative one—slower, calmer, less passionate, more reflective. This was an emphatically republican answer to the question of how to remove the commander-in-chief. As one careful historical account puts it, “The Constitution assigned this labor to the Senate because the delegates expected the upper house to rely upon its own wisdom, information, stability, and even temper. . . . The American impeachment trial, with its two-thirds requirement, was thus a hybrid of native origin, expressing truly republican compromises.”2