Vice Presidential Disability

There are many criticisms that can be lodged against the Twenty-Fifth Amendment, and one of them is that there is no process for removing a disabled vice-president short of impeachment.  If you think about it, this presents a serious problem.

Suppose the VP suffers a stroke.  He or she cannot be fired by the President, unlike other significant executive officials. We can do without a functioning Vice President, but what if the President dies or resigns?  Presumably the disabled VP would become President and then would be sidelined under the 25th Amendment.  Then the Speaker of the House would become President (possibly from the other party).  That Acting President could nominate his or her own Vice President (otherwise the next person in the succession would be the President Pro Tempore of the Senate), which in turn could mean that the disabled President (if he or she recovered) could wind up with a new VP not of his or her own choosing.

You could solve this by impeaching and removing a disabled VP without naming a replacement.  Then if that VP recovered, the President could name the old VP as the new one.  But would being ill constitute a “high crime and misdemeanor?”  Some members of Congress might be reluctant to set a precedent like that.

Sooner or later, the idiocy of the Presidential Succession Statute, along with the flaws are the Twenty-Fifth Amendment, are going to cause a constitutional crisis.

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5 Responses

  1. Brett Bellmore says:

    OTOH, we don’t want to set a threshold for declaring a President or Vice President incapacitated, which is lower than the threshold for impeachment, because impeachment would just end up replaced by pretextual rulings of incapacity. So, while an amendment is waranted, it should probably just add incapacity to “high crimes or misdemeanors” as cause for impeachment.

    Then again, the threshold for impeachment, given that it is now viewed by Democrats as a purely political matter having nothing to do with the validity of the charges, is probably too high. Perhaps a lower threshold for calling an early election would be in order?

  2. Joe says:

    “now viewed by Democrats as a purely political matter” … can you even try to be evenhanded? How exactly, granting the statement (and I really don’t) is it not BOTH parties doing that? I’d add that given the nature of the process, impeachment is going to be somewhat political — political actors being the parties doing the charging and convicting.

    The original Constitution provides Congress with the power to deal with the situation when the President and Vice President is unable to discharge the office and the matter can be dealt with by statute. The current rule is a throwback to when Federalists didn’t want Jefferson to be in line to be President (if that is the reason for not making the Secretary of State third in line back then) and should be changed.

    Note the VP chosen has to be confirmed by Congress which provides a check there. If BOTH the President and VP (often not someone many seriously think will be the POTUS anyway) are unable to be President long enough for that process to occur, there would be major problem either way. I’d note that if someone was totally unable to serve, such as being in a coma, “vacant” might arguably apply. If not and the person is truly unable long term to serve and the President dies, a quick impeachment can be used if necessary.

  3. Brett Bellmore says:

    Joe, “evenhanded” doesn’t mean “Favorable to Democrats”. Forget the joke of a ‘trial’ Clinton got. I’ll remind you that Democrats were actually talking about impeaching Bush to even the score before he ever took office. It’s widely understood that there will never be enough votes to convict Koskinen, regardless of the fact he unambiguously lied under oath to Congress, and materials under subpoena by Congress were destroyed on his watch.

    I stand by my statement.

    Setting the matter of Democratic attitudes towards impeachment aside, in over 200 years only 15 impeachments have taken place, and only 8 have proceeded to removal. We do not have a miraculously honest government, impeachment is simply too difficult.

    I believe that the party system has become one of the barriers to effective use of this process.

  4. Shag from Brookline says:

    OOPS! Brett said “Democratic.” Republics, take note!

  5. Joe says:

    I’m not using words strangely here. I don’t know what “Democrats” talked about impeaching Bush before he came into office “to even the score” though I’m sure you can pick and choose a few to convince yourself.

    You single out one hobbyhorse. You can select various other people who the Republicans wouldn’t impeach (or convict — impeaching when there is no hope of convicting done as much as prosecutions done with no hope of conviction) when the facts are there. Clinton was a political choice by Republicans even granting he did something worthy of it.

    Impeachment is not a great check as such but update the details there were 19 impeachments and though only a few were convicted many more judges (and a few others like Nixon) resigned and had their behavior affected arising out of investigations just like one need not be prosecuted to have their behavior affected. This is not trivial — in 2003, David O’Brien in his constitutional law and politics book (volume one) notes over fifty judges resigned to avoid impeachment.

    To the degree the “party system” was a barrier, sure. But, you can’t stop there. With no real facts, you single out one side even while saying — when Republicans controlled Congress or had enough votes to block likely successful impeachments — how few impeachments have occurred.

    https://en.wikipedia.org/wiki/Impeachment_in_the_United_States