The Volokh Conspiracy

My final post about my book, Constitutional Cliffhangers, will deal with fixing and preventing constitutional cliffhangers.

One of my pet peeves is when an article identifies a potential constitutional problem and then concludes blithely that the best solution is just to amend the Constitution. Even passing a statute is tough. Heck, just getting Congress’s attention is hard. A few years ago, I wrote an article about a 50-square-mile swath of Idaho where (according to my theory) people can commit crimes with impunity. Orin posted something about it here and it went viral. A bestselling novel was even written about it. And yet, of the scores of members of Congress I wrote to trying to get them to close the loophole, only a couple even acknowledged my letters.

My book thus wrestles with the very real barriers to fixing the traps I identify, either before or after the nation steps in them. The final chapter of my book offers a lengthy analysis along these lines. I’m not going to say much about that in this post, other than to talk a bit about my conclusion that some cliffhangers are not really worth trying to fix in advance.

There are two kinds of cliffhangers: those in which the main problem is a bad result, and those in which the main problem is uncertainty. An example of the former is Chapter 1, where a sitting president might get prosecuted (with the attendant disruption) or might not (with the attendant injustice). The fact that, in the meantime, presidents and prosecutors go about their days unsure of the answer is much less of a problem. The chapters on self-pardons and late impeachment fit in this category as well. Legislation requires energized consensus, and there wouldn’t be one. Best, then, to just wait for an actual case to deliver a final resolution: either an acceptable result or an unacceptable one that motivates Congress to act.

When the problem is uncertainty, by contrast, the case for proactivity is stronger. In Chapters 3 and 4, constitutional uncertainty could rip the country in half, with two people claiming presidential power, issuing contradictory orders to the military, and purporting to fire cabinet members. The cost of resolving such cliffhangers “the hard way” is so high that it should soften opposition and make it easier — albeit still not easy — to reach a consensus and fix things ahead of time.

The main thing I want to talk about in this last post, though, is better drafting. There is no way to go back in time to 1787 and help the Framers write a better Succession Clause, or to 1947 to help the Twenty-Second Amendment’s drafters tighten up their wording, but Congress will probably draft procedural constitutional amendments in the future. I have some modest suggestions for drafting them better.

The rules and procedures surrounding the presidency are no place to be casual. These provisions should be hyper-precise, even if it means losing some of the public accessibility that is otherwise ideal for the Constitution’s language. Yesterday’s sad tale of the attempt to simplify the Twenty-Second Amendment showed that sacrificing exactitude for punchiness can cost you both.

The process of drafting technical amendments is an odd combination of painful slowness and reckless speed. It typically has taken years and multiple attempts to get a proposed constitutional amendment introduced, through committee in one house of Congress, onto the floor, approved by two-thirds, through committee in the other house, onto the floor there, and approved by two-thirds there. Each step presents an opportunity to change the text.

Especially at the final stages, though, there is a strong sense of impatience and urgency. Having gotten as far as they have, proponents are reluctant to allow anything that might stop the proposal’s forward progress. Moreover, having fought so much and for so long over the details, they distrust any attempt to unravel their craftsmanship.

To a large extent, they are right. Often, proposed last-minute changes represent arguments that were already considered at the committee level and either were shot down there or were the subject of a carefully wrought compromise. Even to the extent that some changes are new, any proposal that stops long enough to get pecked at by hundreds of individual members of Congress will have a hard time ever getting through. If the proposed change is picky and it concerns an unlikely series of events — the stuff of constitutional cliffhangers — it will be hard to defeat the floor leaders’ powerful natural desire to ignore it.

But once there is a consensus on an amendment’s concept, execution, and details, an argument that is solely about the text should not be so disfavored. To be sure, when somebody on the floor of the Senate identifies a phrase that could be drafted better and proposes redrafting it, that is inimical to the goal of final passage. Sending the language back through committee could take weeks or months — an unavailable luxury near the end of a congressional term. Drafting by the full Senate on the spot doesn’t work very well either. Still, sometimes a late change really is called for. Realistically, it’s the last chance; once Congress has approved a proposed amendment, it has no real opportunity to do any redrafting.

Congress thus needs a way to identify mistakes earlier in the process, and to fix late-discovered mistakes in a way that doesn’t unravel years of careful work. The key is to separate the process for agreeing on an amendment’s purpose from the process for finalizing the text. I have a modest suggestion: add two steps to the process, drawing upon wisdom in the general public and using modern collaborative technology to perform a sort of wiki government.

When people or committees have been working with a text for too long, it becomes difficult for them to see the problems with it. A fresh pair of eyes — or better yet, millions of fresh pairs — can be very valuable. Consider the analogy of the very successful use of open-source collaboration to write and debug software. Constitutional amendments can be complicated, but they are less so than software (or than statutes, where this technique has been tried in some places, with mixed results). Thus, there is good reason to think that with the right collaborative technology, interested members of the public would be very helpful at “debugging” and optimizing proposed constitutional amendments.

Once a congressional committee has reached a final, clear consensus on the concept, execution, and details of an amendment, it should give the text one more run-through, to make any improvements to the text that better vindicate that consensus. The committee could take, say, five days to optimize the text with the help of an online process through which interested members of the public could propose, discuss, and rate alternative phrasings.

Working together, the interested public would quickly discover previously unnoticed loopholes and pitfalls, identify the best ways to prevent them, and generally optimize the text. Textual optimization is not easy, but that’s precisely the point. Members of Congress and their staffs, even at their most able, intelligent, and hardworking, cannot match the “wisdom of crowds.”

The “crowd” might find bugs that affect the details in ways the committee had not clearly addressed, but the collaborative process could provide multiple optimized texts, each one reflecting a different set of substantive choices. The committee would still vote on the substantive choices; the public process would just flag issues and offer good language to deal with them. (The committee could get public input at an earlier stage, when it is discussing concept, execution, and details, but there is reason to doubt that this would work nearly as well.)

Once the proposal moves from committee to the full House or Senate, there might be new debate about the concept, execution, and details. Changes at this stage would require changes to the text that the first round of public input might not have covered. But at that point, a similar (and shorter) public process could help to smooth the text over again. Because the textual changes would be working toward a common goal, and because it would not entail rejecting, or tabling, or sending the item back to committee, the public process would not need to slow things down much at all.

Congress would still maintain its voting power, of course. The public would have influence, not direct authority. But public influence would be a welcome addition to the process, even aside from its effectiveness. The Constitution represents the voice of the People with a capital P, not just that of their representatives, in a way that is not the case in the less concise, less accessible world of statutes. When it comes to writing new words into the Constitution, this sort of public participation would have a nice symbolic value as well.

I promised to offer today some of the “general lessons” from my new book, Constitutional Cliffhangers. I will divide them into two posts that excerpt and paraphrase the final chapter of the book. This one will deal with the way that law and politics interact when constitutional cliffhangers play out.

For the cliffhangers that would play out entirely in court (presidential prosecutions and self-pardons), one would hope that judges would base their decisions on law, not politics. When Clinton claimed he was immune from Paula Jones’s civil suit, all nine justices disagreed, including the four liberals. Similarly, when President Nixon refused to turn over the Watergate tapes, the justices — many of whom Nixon had appointed — were unanimous in ordering him to.

But the starting point for most cliffhangers is that the law is unclear. When the law is in equipoise but the politics are screamingly unbalanced, the court’s decision will be inextricably linked with its political context. Here, the example is not Clinton or Nixon, but Bush v. Gore.

The Bush v. Gore litigation was, on its face, all about the complicated legal issues; no lawyers said in court, “My client should win because he belongs to your favorite political party, your honor.” But it was evident that if Bush won the case, he would win the presidency. That political ramification overwhelmed the legal issues. Few believe that all nine justices would have voted the same way if the parties had been reversed. When politics infuse the courts like that, the moral authority of the judicial system necessarily suffers. There is an added incentive, then, to prevent constitutional cliffhangers if we think that they would play out in court in such a politicized manner.

Several of my cliffhangers also implicate the political-question doctrine, through which courts leave decisions to the political branches. Alas, the political-question doctrine is not overly clear. Moreover, the doctrine seems to have been weakened lately as federal courts have grown more assertive about inserting themselves into conflicts like these. Compare the disputed 1876 presidential election, in which Congress’s ad hoc resolution carried the day with nary a peep from the Supreme Court, to the disputed 2000 presidential election, in which the Supreme Court’s ad hoc resolution carried the day with barely a peep from Congress.

For most of our cliffhangers, letting the courts get involved would be perceived as a good thing. In many instances, the courts can provide faster and more decisive action than Congress. The Court is, justifiably or not, currently exalted as the nation’s ultimate authority over the Constitution. Moreover, some cliffhangers involve Congress as one of the combatants, and some arise because of congressional carelessness or ineptness. For cliffhangers like those, the courts have much less incentive, and much less basis, to give Congress the last word in resolving them.

Some constitutional cliffhangers surely would play out in Congress, though, and the presence of politics there seems less controversial. Congress is full of politicians — politics clearly “belong” there. To return to Bush v. Gore, if a dispute is going to be resolved by a party-line vote, isn’t it better to have that vote in Congress than in the Supreme Court? Even a seemingly objective issue like presidential disability will be infused with politics, as both sides carefully weigh the political ramifications of their choices and ponder who might deserve the benefit of the doubt.

The Constitution assigns lots of tasks to Congress, from the mundane (passing laws, confirming presidential nominees) to the exceptional (impeachment, presidential disability disputes, winner-less presidential elections). The Constitution’s Framers opted for flexibility, painstakingly creating a structure through which these matters — often matters of great constitutional import — can be settled by ordinary political actors being ordinary and political. This system works well and would work even better if we gave it more of a chance.

But if matters are assigned to Congress because it is representative and accountable, this presents a problem when Congress falls short on either score. An imperfect Congress cannot resolve constitutional cliffhangers with the same legitimacy as a “better” Congress. And there are plenty of imperfections in Congress’s representativeness and accountability. We have corruption, our questionable campaign-finance system, gerrymandered House districts, the disproportionateness that is the Senate, the continued toleration of filibusters, sheer inefficiency, and so on.

There are too many opportunities for Congress to get things wrong. When it comes to situations like deciding which of two contenders is the rightful acting president, there is a dangerous possibility that Congress would thwart the will of the people rather than promote it. In ordinary times, the people can reassert their control in an orderly manner every two years when they vote in congressional elections. But in the middle of a struggle over control of the White House, waiting for the next election would be insufficient and courts seem like the better venue if the Constitution allows it.

Finally, there are presidential politics. In each chapter, the more popular the president (or would-be president) is, the more likely he or she is to emerge victorious, or to not get in trouble in the first place. It’s worth considering two other facets here: the president’s commander-in-chief power, and his populist power to mobilize the public.

In my Tuesday and Wednesday posts, when two people claimed the presidency, it mattered whose side the military took. This is troubling. Our norm of civilian control of the military is threatened if the military starts choosing presidents. On the flip side, though, civilian control could paralyze the military if there were two people claiming to be commander in chief, with two putative secretaries of defense. It would be intolerable for the military to choose sides, but also for it not to choose sides. Perhaps worst of all is a third possibility: the military could be divided and choose both sides. There is no good answer here, just more incentive to prevent the cliffhangers.

Also potentially decisive is the relationship between the president and the public. In yesterday’s post, for instance, the president could not even think about evading term limits unless he had very strong popular support. If that support translated into an electoral victory in November, it would confer a unique legitimacy on him. It is unclear how well suited “populist constitutional law” is for interpreting narrow procedural provisions, but Congress and the courts would resist the people at their peril.

Less comforting is the possible role of the people “out of doors.” Citizen-mobs who take to the streets can be decisive, whether because they galvanize opinion, frighten opponents, or provoke a reaction from the state. We are in the midst of a relatively quiet period in American history, mob-wise, but this potential is never far from the surface, and angry assemblages have played an important part in American constitutional history.

The more credible the courts and Congress are, the longer the mobs would hold off, and the more likely a formal decision would be to quiet things down. Conversely, if Congress and the courts are delegitimized, public demonstrations might actually be the most legitimate way to resolve the conflict. Looking back into our history, and thinking about possible futures, we should not dismiss out of hand the potential contributions of an American public that is mobilized (the etymological source of the word “mob”) and exercising its First Amendment right to assemble.

On the other hand, nobody is in a better position to whip the public into a frenzy — to inspire mobs to form, and to move them to action all over the country — than the president. The problem is that in many constitutional cliffhangers, nobody will have a better incentive to do so than the president. In calmer times, the political cost of being a shameless demagogue is high enough to keep these pressures contained. But when a cliffhanger occurs, that balance could change and those pressures could explode.

As with the military, to the extent that the role of mobs is troubling to us, it provides yet another incentive to fix and avoid these cliffhangers. Fixing and avoiding cliffhangers will be the subject of my next, and final, post.

I have had a lot of fun this week blogging about my new book, Constitutional Cliffhangers. I’d like to thank Eugene again for inviting me, and to the readers and commenters, especially for their kind words. This week has been even better than my last appearance here, when Eugene unveiled Kalt’s Law of Presidential Facial Hair to the world.

This post is devoted to answering some of the more challenging comments my threads got — or more precisely, ones to which the answer is something other than “I address that at length in the book, actually.” There were about thirty where I wanted to just paraphrase long passages from the book (and I do it one time below).

arch1 asked what I meant when I referred to “fixing” presidential constitutional cliffhangers. It’s important to distinguish first between cliffhangers in which the danger is a bad result, and cliffhangers in which the danger is uncertainty.

The latter are much more perilous. The most harrowing scenarios are ones where two people are claiming control of the presidency, as in my posts on Wednesday (on the succession law) and Thursday (on presidential disability). In those cases, a “fix” would be adding certainty and clarity. In the case of the succession law, that means passing a new statute. For the disability procedure, presidents and their legal staffs need to take some simple, precautionary steps.

There’s more difficulty fixing cliffhangers in which the problem is a bad result. Take Chapter 1, on prosecuting sitting presidents. There would be some uncertainty, but the courts could resolve it quickly enough. The bigger problem would be that the presidency might be derailed by a single, unaccountable prosecutor — or, if you take the other side, the problem would be that the president would potentially get away with a crime. A fix is harder here, because it would require consensus on which outcome would be the bad one. It’s hard enough to get Congress to act when the public agrees on something, let alone when there is no consensus at all.

Fixes are even harder when the only way to achieve them is by amending the Constitution. That’s the case in Chapters 2 and 5, on self-pardons and late impeachments. Uncertainty would be resolved fairly quickly. If people were upset at the result — that the president successfully pardoned himself (or couldn’t), or that an ex-president was impeached (or couldn’t be) — they would need to amend the Constitution to change that result, but amendments are pretty unlikely. I argue in the book that, for these cliffhangers, we’re best off just sitting back, doing nothing, and hoping for the best.

Don C and Malvolio commented, with regard to the Wednesday post on the succession struggle, that the Secret Service would follow the succession law and escort the secretary of state from the White House. The Secret Service might be receptive to a court order voiding the succession law, but until and unless that happened, these commenters made a strong case that the Speaker would have the guns on her side.

I think that their points are well taken. There would be limits to the Secret Service’s loyalty to the Succession Act of 1947, though. Secret Service agents and their superiors are human beings, after all. In the hypothetical, the president — and presumably her Secret Service detail — has just been blown to smithereens. The Speaker was complicit in preserving the vacancy in the vice presidency, and fueled the murderous rhetoric that led to the assassination. Indeed, the assassin specified that the purpose of the bomb was to install the Speaker of the House as president. Couple that with the strong constitutional arguments, and a preliminary injunction or two, and who knows what would happen?

For the most part, I am content to defer to my lengthier discussions of answers in the book, but I did want to respond to Brett Bellmore’s comment about Thursday’s third-term scenario. He wrote:

Come on, now, you might not want to “get into” the 12th amendment, but that doesn’t make it unclear.
Granted, with enough bad faith, you can ‘interpret’ anything to mean anything, but a two term President running for VP takes stratospheric levels of bad faith.
Hm, come to think of it, that doesn’t actually rule it out, in today’s Washington...

Of course, I do “get into” it in the book. I’m not afraid of the Twelfth Amendment, folks, I’m just not interested in making my blog posts even longer than they are, so I necessarily have to leave out a lot. But I’ll allow this comment (and this one from B.D.) to goad me into getting into it more here.

The Twelfth Amendment says that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” The question here is what “eligible” means.

Early drafts of the Twenty-Second Amendment talked about two-termers being “eligible to the office,” a phrasing that would have avoided any confusion, but the final version speaks instead of being “elected to the office.” The question is whether that makes two-termers “constitutionally ineligible” to be president — and thus ineligible to be a vice president under the Twelfth Amendment.

If you think that the Twenty-Second Amendment bars two-termers from any service as president, then there’s nothing to talk about. To you, two-termers are completely ineligible to be president, and so completely ineligible to be vice president either. But if you think that the Twenty-Second Amendment allows two-termers to serve as president through succession, things are not as clear cut.

Some people argue that electability and eligibility are synonymous. This would mean that when the Twenty-Second Amendment makes two-termers presidentially unelectable, it also makes them “ineligible” to be president, and thus ineligible to be vice president, under the Twelfth Amendment.

Others say that eligibility is broader, with electability as only one of its parts: because the Twenty-Second Amendment stops short of making two-termers totally ineligible to serve as president, the Twelfth Amendment does not restrict them in any way from becoming vice president either.

The most subtle interpretation is that, by precluding their election, the Twenty-Second Amendment makes two-termers partially ineligible to be president. The Twelfth Amendment defines vice-presidential eligibility as identical to presidential eligibility. Now that the Twenty-Fifth Amendment provides for vice-presidential vacancies to be filled by appointment rather than election, the vice-presidential door is open, partially, for two-termers under this interpretation.

Brett and B.D., I hope that’s a good-enough-faith effort at showing the range of potential Twelfth Amendment arguments for you.

Finally, I wanted to respond to the many commenters who said that they’d like to buy my book, but balked at the price. I wish there was something I could do about that. I tried. Academic publishing is a tricky business, though. Print runs are small and fixed costs are high. More to the point, mass-market appeal is tough to gauge. I’m sure that I’m not the only author who thinks that the publisher underestimated the mass appeal of his own case, but I’m equally sure that most of us are wrong. All I can say is that Constitutional Cliffhangers is worth every penny :)

The last chapter that I will preview from my new book, Constitutional Cliffhangers, is Chapter 6. It deals with a potential loophole in the Twenty-Second Amendment’s term limits for presidents. It’s also the only chapter that cites a commenter from the Volokh Conspiracy.

The term-limit loophole has been noted and discussed a fair amount, dating back to the first president to be constrained by the Twenty-Second Amendment (Eisenhower). There have been robust discussions in newspapers, law-review articles, and blogs. Smart people on both sides have gotten surprisingly vehement about the question.

No president has attempted to exploit the loophole, and President Clinton spoke against it. Still, in the long term, the fates of term-limit provisions around the world suggest that we should not be too complacent over the long term.

Here is the chapter’s opening:

President Frederick is three years into his second term. He remains so popular that some pundits have floated the idea of repealing the Twenty-Second Amendment and letting him run for a third term. Frederick laughs off such talk, and a national opinion poll shows that only 12 percent of voters support repeal. Still, Frederick casts a large shadow; on the eve of primary season, his Democrats have no clear front-runner for the nomination to replace him.

Then disaster strikes: a treacherous terrorist attack kills tens of thousands of Americans. The country rallies behind President Frederick as he leads a strong offensive against the terrorists and their sponsors. His approval rating shoots into the nineties. While the country is badly rattled by the attack, people feel safer with Frederick in charge.

Frederick feels pretty good being in charge too. Now, when the Twenty-Second Amendment comes up, he sounds increasingly coy. Support for repeal rises to almost 50 percent in the polls. But Republicans — and several prominent Democrats — argue against amending the Constitution in the heat of the moment, so the congressional and state supermajorities needed for an amendment are well out of reach.

At this point, a startling idea gains traction among Democrats: President Frederick can run for vice president. Many people would find Frederick’s mere presence reassuring. Others envision a figurehead president who would leave VP Frederick in charge or perhaps even resign and let Frederick become president again. This last maneuver would be constitutional, they say, because the Twenty-Second Amendment only says that no one “shall be elected to the office of the President more than twice,” and Frederick would not be “elected” president. The amendment says nothing about a two-term president “succeeding” to the presidency, or “serving” as president. Buoyed by Frederick’s stratospheric popularity and the atmosphere of crisis, the plan steadily gains support, and Frederick’s anointed surrogate, Representative Stevens, sweeps the Democratic presidential primaries.

The Republicans object forcefully. As one senator puts it on a Sunday morning talk show, “We’re all grateful to President Frederick for his leadership during these difficult months, but everybody knows we have a two-term limit. We shouldn’t let the Constitution be a casualty of this war.” Frederick is officially nominated for vice president at the Democratic convention, and the litigation floodgates open.

Later on in the chapter, we get this exchange on a cable news show:

Professor Scott: Look, I can’t tell you why the drafters of the Twenty-Second Amendment limited it this way. But they did. When they wrote the first draft of the amendment, they said two-termers couldn’t “hold the office.” But then, they changed it from “hold the office” to “be elected.” You see? They initially banned what President Frederick is trying to do, but then they changed the language until it didn’t say that anymore. They said “elected” only, they said it on purpose, and that’s that.

Professor McCulloch: The Twenty-Second Amendment was written to keep two-termers out. The Twelfth Amendment says two-termers can’t run for vice president either. Frederick is a two-termer. It’s not that complicated, and people know it. Professor Scott likes talking about the “plain meaning of the text” here, but that just means he wants to ignore the context and ignore the clear purpose of the amendment and ignore the way people have understood this language for generations. If the Twenty-Second Amendment is this easy to avoid, then it means nothing, and judges don’t like to interpret the Constitution as an exercise in futility. I think Professor Scott and I agree on one thing, though: if the courts don’t prevent this, the people will still get to decide. Lots of voters who would otherwise vote for President Frederick are going to vote against him, because they recognize how inappropriate this is.

I don’t want to get into the legal arguments about the Twelfth and Twenty-Second Amendments here, because so many people have written so much about them already, including on this blog. Briefly, the question for the Twenty-Second Amendment is whether it bars two-termers only from being elected again (as the text says) or from serving anymore at all (as the spirit and the popular understanding of the amendment suggest). For the Twelfth Amendment, the issue is whether “eligible” (in the phrase “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States”) means eligible to be elected or eligible to serve at all.

Instead of wading into these questions here (I don’t want to just reproduce my whole book, after all), I want to focus on the cautionary tale this represents about constitutional drafting.

An earlier draft of the Twenty-Second Amendment would have avoided this problem, just as Professor McCulloch suggests in the last block quote above. That language was changed in a bold move to “simplify” the language down to 13 words, thus opening the loophole. This was foolish. First of all, the language quickly got re-complicated anyway back up to 121 words (though not in a way that noticed, let alone closed, the loophole). Second, it is more important that technical “nuts and bolts” constitutional language be precise than that it be elegant.

The other side of the argument is that the risks are too low to worry about. And it is truly hard to imagine any president trying to pull this trick; the president would need to have enough support to win even after subtracting out all the would-be supporters who (1) think he is constitutionally ineligible to serve or (2) think that term limits should be observed even if they are not technically required. As Dean Acheson put it back in the Eisenhower days, a two-term president running for vice president would be “more unlikely than unconstitutional.”

But low risk is no reason to let our guards down. What is gained by having a more elegantly phrased amendment that leaves even the slightest potential loophole open? Whatever you think of the possibility of this cliffhanger occurring, it’s hard to argue that we wouldn’t be better off with an amendment that was a few words longer but covered all the bases.

I have some ideas about ways to improve the constitutional drafting process, which I will discuss tomorrow. For now, the point is that we can and should do a better job when dealing with issues like these. For every expert adamant that two-termers cannot serve again (my favorite line from one professor, responding to his opponent: “The contention is so preposterous, and so obviously wrong, that one wonders how a nationally renowned law professor at one of the top law schools in the nation could make such a mistake. . . . [He] quite obviously knows little about the Constitution.”), there is an expert adamant that they can. While shoddy drafting makes it easier for people like me to have their fun writing about hypothetical craziness, it would be better for everyone to keep doubt and uncertainty about presidential power at a minimum

With all due respect to Dean Acheson (and to the commenters here at VC who will say that this chapter is stupid because it simply could never happen), I will just close with the words I use to end Chapter 6: “Constitutional disputes do not arise in a vacuum, and our democracy has had its weak moments. It would be foolish to assume that the United States will never have a president who is more popular than the Constitution — or, more to the point, more popular than one disputable interpretation of it.”

The next chapter of Constitutional Cliffhangers I’d like to present is Chapter 3, on the presidential disability provisions in the Twenty-Fifth Amendment. This is an unusual candidate for a cliffhanger for two reasons. First, one side of the constitutional debate seems to me to be clearly wrong, with no chance of prevailing in court. Second, the “repair” here is rather easier than in other chapters, requiring no legislation.

Here’s the scenario. See how many Caine Mutiny references/analogies you can spot:

Frances Philips is halfway through her second term as president. Her management style, which was always “hands off,” has become downright lax. She skips meetings, neglects decisions that need to be made, and shows little interest in being president. Some members of her cabinet and staff worry that she is clinically depressed, but — swayed by the increased power that comes with having a figurehead for a boss — none of them does anything about it.

Then President Philips starts alternating her periods of utter inertness with bursts of aggressive and arbitrary micromanagement. At a cabinet meeting, she rants for ten minutes about the use of blue pens instead of black ones. Next, without explanation, she announces that she is killing a carefully developed policy initiative in which she had previously taken no interest.

Several cabinet secretaries become convinced that the president is unable to perform her job. They start to discuss Section 4 of the Twenty-Fifth Amendment, which allows the vice president and a majority of the cabinet to declare the president “unable to discharge the powers and duties of [her] office,” and transfer power to the vice president. Crucially, though, Vice President Merrick opposes the effort. Although he worries that President Philips’s mental condition is deteriorating, he is reluctant to lead what could be perceived as a coup.

Things come to a head when war unexpectedly breaks out in the Middle East. After hearing the initial reports, President Philips paces in the Oval Office, muttering to herself but issuing no orders and taking no action. After several excruciating hours pass like this, Vice President Merrick has had enough, and he gathers the cabinet to file a Section 4 declaration. He is joined by a solid majority: eleven out of fifteen cabinet members.

President Philips is blindsided, but her chief of staff Tom Cooper (who Merrick erroneously thought would support the Section 4 declaration) is not. When Philips asks what her options are, Cooper reads to her from Section 4: if the president sends a counter-declaration to Congress that “no inability exists,” she can “resume the powers and duties of [her] office.” Cooper notes, however, that Section 4 allows the vice president and cabinet to reassert the president’s unfitness within four days, sending the matter to Congress for a final decision, and giving power to the vice president in the meantime.

With renewed focus, Philips executes Cooper’s plan. First, she signs a letter declaring herself fit and transmits it to Congress. Next, she summons the cabinet and addresses the eleven mutinous members: “If you don’t think I can discharge the powers and duties of my office, watch this. You’re fired.” Finally, she replaces them, naming eleven of her most trusted subordinates as acting cabinet secretaries.

In response, Vice President Merrick rallies the old cabinet, and he and the original eleven challengers sign a second declaration of Philips’s disability. Merrick claims that Philips has misread Section 4: Philips never retook power, her firings are invalid, the second disability declaration is valid, Merrick is the acting president, and Congress must now step in. Unfortunately, as advised by Chief of Staff Cooper, Philips refuses to back down. She says that she is in control, with the unanimous support of the “legitimate” cabinet, and that Congress has no basis to act.

The nation is in crisis. There are two presidents and two cabinets. The situation in the Middle East is spinning out of control, and nobody knows for sure who the rightful commander in chief, secretary of state, and secretary of defense are. Congress assembles while dueling sheaves of legal pleadings and memoranda flood the federal courts.

President Phillips and her chief of staff are clearly in the wrong here. The problem is that Section 4 is written in a way that allows them — in the heat of this tense situation — to misread it. In the chapter, I talk more about how their misreading could happen, including instances of smart people making the same mistake.

Part of the problem is that the main source of clarity is the legislative history: a statement in response to one of those smart people making the same mistake. Later in the chapter, it leads to this exchange:

White House Counsel Keith: Madame President, the legislative history of Section 4 is clear as a bell. You do not get to come back until this goes through Congress, unless the cabinet went four days without re-challenging you. But the cabinet did re-challenge you. I’m sorry, Ma’am, but Vice President Merrick is in charge and you cannot fire anybody.

President Philips: [Expletive] the legislative [expletive] history, [expletive] Merrick, and [expletive] you, you [expletive] traitor [expletive]!

The drafters of the Amendment operated in an era in which legislative history was assumed almost to be part of the text. There is a striking (unrelated) passage in the legislative history in which Senator Bayh states that the legislative intent is that the amendment be construed as if a passage that had appeared in an earlier draft was still there! But mistakes are most likely to be made in precisely this sort of situation, in which tensions and stakes are extraordinarily high, and there are powerful incentives pushing the president and some of her staff in this direction.

Consider the immediate aftermath of the shooting of President Reagan in 1981. The administration was unprepared to discuss transferring power, and “the men gathered in the Situation Room [did not] know what action they were authorized to take or expected to take.” Away from the White House (and to no effect), lawyers in the Justice Department studied the legislative history of the Twenty-Fifth Amendment as President Reagan was in surgery.

Largely as a result of that episode, presidents have much better contingency planning. Still, nothing is guaranteed. This cliffhanger is a good example of the importance of careful, clear constitutional drafting. Presidential disability and succession rules are no places for the slightest uncertainty. They should be certain and swift — there should never be doubt about who the president is at any given moment.

This cliffhanger exposes flaws in the drafting process, because earlier drafts of the amendment were written in a way that would have prevented the Phillips scenario from ever occurring. The book offers some thoughts about improving the amendment-drafting process to prevent these sorts of things from happening. (The Twenty-Fifth Amendment is also the only one I am aware of with a typo in it. Ten points to the first commenter to find it.)

In the meantime, as I said at the outset, the fix here is relatively easy. Presidents and their legal staff need to make it clear — right now, when there is no crisis — that they understand that the vice president is in charge during the four-day waiting period.

As mentioned above, contingency plans aren’t always followed. Nevertheless, if the proper interpretation of Section 4 gets engrained regularly enough, the chances of someone getting in wrong in a crisis will fade away.

In my first post I said that my “cliffhangers” range from the merely interesting all the way up to full-blown constitutional crises. My favorite chapter in Constitutional Cliffhangers, Chapter 4, definitely qualifies as a crisis. Here is the opening:

The United States is deeply divided over the war. Everyone agreed that we needed to fight back when Ruritania attacked our bases, but after two years of intensive combat, things are not going well. Addressing the nation, President Joanna Lewis announces her intention to seek a negotiated settlement. The half of the country that agrees with her breathes a sigh of relief.

The other half boils with rage. Responding to the president, Speaker of the House Peg Wilton says, “We are losing this war — not because our cause is hopeless, but because we have a cowardly commander in chief. We should never surrender to fascist aggression.” “Coward” is a mild epithet compared to what other hawks call President Lewis.

Complicating matters is that a few weeks ago, the vice president suffered a fatal heart attack. President Lewis nominated a candidate to fill the vacancy, but the hawks in Congress have stalled the vote. They are motivated by their distaste for the nominee’s unsurprisingly dovish position on the war, but everyone notices that while the vice presidency is vacant, Speaker Wilton is next in line for the presidency (followed by the president pro tempore of the Senate, and then members of the cabinet, starting with the secretary of state).

As President Lewis arrives at a public event one morning, an assassin detonates a huge bomb, killing the president and dozens of others. In a homemade video produced before the assassination, the bomber decries “the coward Lewis” and announces his intention to kill Lewis so that the stalwart Wilton will become president and continue the war. Within two hours of the assassination, the video has saturated television and the Internet.

The assassin seemingly gets his wish. Wilton condemns the assassination in the most strident terms, obviously, but she takes an oath of office that morning as acting president. Her political position is tenuous. Supporters of the martyred President Lewis blame Speaker Wilton for fueling the rhetoric that led to Lewis’s assassination, and for her role in stalling to keep the vice presidency vacant. In other words, they feel as though the country has just suffered a coup d’état. They latch onto a legal argument that, just hours earlier, had been an academic one: that it is unconstitutional for the succession law to include members of Congress. Wilton’s opponents argue — with the support of several prominent legal experts — that the dovish secretary of state, John Allen, is the legitimate acting president.

Secretary Allen decides to contest Wilton’s claim to the presidency. He too takes an oath of office as acting president and, without using force, he assumes physical control of the White House. “The struggle over our war policy has been ugly, but it’s a political struggle,” he says in a national address from the Oval Office. “In America, we don’t settle political questions by mass murder.”

It has only been ten hours since the assassination — a shocking and surreal day. No violence has broken out yet, but it feels like only a matter of time before it does. No one is in the mood to compromise, and control of the government and the military hangs in the balance as Allen and Wilton vie for control.

This is my favorite chapter for many reasons. The first is that I can’t resist the potential drama of the story (a novel is in the works). The second (and my main focus in this post) is that it highlights the interaction between law and politics.

The legal issue here is complicated, but to summarize briefly: The Constitution’s Succession Clause empowers Congress only to place “officers” in the line of succession, and the Speaker of the House and the President Pro Tem of the Senate (whom the statute places second and third in line, respectively) are arguably not “officers” as the Constitution uses the term. The secretary of state clearly is an officer. (I am guessing the commenters might get into the details more...)

The role of politics here is key. Even though the weight of scholarly opinion is (by my measurement) on the secretary of state’s side here, I concede that the Speaker could assume office without controversy in most cases. The general public would accept the result. Those that did not would either lack standing to challenge the succession law, or (like the secretary of state, who would have standing) would lack the political and personal will to do so.

But in a situation like the one in my opening scenario — in which the Speaker is of a different party, had a hand in maintaining the vacancy in the vice presidency, and arguably incited the vacancy in the presidency — the secretary of state might make a play for control and the country could be in real trouble.

We cannot be sure that the winner of this struggle would be the side with the stronger constitutional arguments. We can be sure that the struggle itself would shake the foundations of our government.

This odds of this happening might be long, but the stakes are incalculable. On the other side, the benefits of the status quo are minimal. The justification usually offered for Speaker succession (that the Speaker is a top elected official, representing the whole country, while cabinet members are mere appointees) doesn’t amount to much when compared to the potential peril it represents.

Even though this makes it a good candidate for reform from a cost-benefit standpoint, politics again make it hard to see this getting fixed. For various reasons, Congress is better at addressing problems that have already occurred than it is at preventing future ones. Congress is also driven by interests and the “cliffhanger-reform” movement is politically weak, while the “preserve the prestige of the Speaker” movement has a natural constituency at the Capitol.

Law, politics, and the Speaker and secretary of state trying to strangle each other. All of this and more in Constitutional Cliffhangers.

Hello Volokh Conspiracy readers! I’d like to thank Eugene for this opportunity to guest blog here about my new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.

Today I’ll have one post with a brief introduction, and another with an excerpt/discussion from one chapter. I’ll discuss a couple more chapters tomorrow and Thursday, and conclude with some general lessons on Friday. I look forward to your comments, and I’ll try to post some responses to them too.

My book is about what I call constitutional cliffhangers, all of them of the presidential variety. I define these cliffhangers as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.” They range from the merely interesting all the way up to full-blown constitutional crises.

In the middle six chapters, I sketch out hypothetical situations in which (1) a president is criminally prosecuted; (2) a president pardons himself; (3) cabinet members try to oust an allegedly disabled president, who in turn tries to oust them; (4) the secretary of state and the Speaker of the House fight for control of the presidency after the president and vice president are killed; (5) an ex-president is impeached; and (6) a two-term president attempts to stay in power.

In each case there are legal arguments on both sides, complicated by intense politics. The politics are often decisive in cases like these, so it might seem pointless to spend too much time debating the legal niceties. I’ll address that important issue on Friday.

In the remainder of this introductory post, I’ll address a common question that topics like mine evoke: “Why worry about a bunch of crazy stuff that will never happen?”

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late. Consider this passage from my introductory chapter about the lessons we can learn from our most contentious presidential election:

The whole election turned on a few hundred disputed votes in Florida. There had been ultra-close presidential elections before, and there had been ambiguous results in individual states before; it was only a matter of time before both happened at the same time. Unfortunately, no steps had been taken to prevent it.

The problem was that there were no rules for resolving a dispute like this. The quintessential American mixture of politics and litigation filled the void. The Republicans fought to defend their initial lead; the Democrats fought to open things back up and recount the votes. The Republicans controlled key posts in the state government; the Democrats won key victories in Florida state court. The Republicans took their case to Washington, D.C., where Republican-appointed Supreme Court justices declared that there was no time for recounts, handing the election to the Republicans. And so, in 1877, Rutherford B. Hayes became our nineteenth president.

You might recall some similar things that happened in 2000. The underlying quandary — an electoral system in which it is easy for the margin of error to greatly exceed the margin of victory — was no secret before 1876, let alone in 2000. And yet it dangled out there unsolved, waiting to snag both elections. For the most part, it dangles still.

That’s the spirit of Constitutional Cliffhangers.

I’ll be posting again later today with a look at my favorite cliffhanger (Chapter 4 in the book), a succession crisis in which the secretary of state and the Speaker of the House wrestle, figuratively, for control of the White House.