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A Temporary Exit for Blogojevich? Some Lessons from the Twenty Fifth Amendment

By Jack M. Balkin

Adam Gustafsonbr /br /Governor Blagojevich just gave a href="http://thecapitolfaxblog.com/2008/12/19/this-just-in-governor-to-make-statement-to-the-press-today-at-2/" his first press conference/a since his Senate-seat-selling scandal broke. He predictably disclaimed "any criminal wrongdoing" and promised to fight criminal and impeachment charges "until I take my last breath." His lawyer, Sam Adam, announced that the Governor would not step aside unless "the People of Illinois are suffering" or the Governor "cannot govern" or "nothing at all can be done that needs to be done." But note that under a href="http://www.ilga.gov/commission/lrb/con5.htm"Art. V, § 6(c)/a of the Illinois Constitution, the Governor need not be span style="font-style:italic;"unable/span to govern in order to temporarily step aside: He only needs to be "seriously impeded in the exercise of his powers." This impediment standard seems easier to satisfy than the more protective "unable to serve" standard in §6(d) that applies when someone else questions the Governor's ability, as Illinois Attorney General Lisa Madigan did. (The Illinois Supreme Court dismissed the claim without opinion on Wednesday.)br /br /The textual difference between these two gubernatorial impairment provisions could prove helpful whenever--in the Governor's good judgment--the People of Illinois have suffered enough: He could declare that the cloud over his administration has "seriously impeded" the exercise of his authority without rendering him "unable to serve,"and voluntarily and temporarily step aside under §6(c) without creating slam-dunk precedent that could be used against him by the Attorney General (or someone else) questioning his "ability to serve"under §6(d).br /br /Compare this to the a href="http://avalon.law.yale.edu/18th_century/amend1.asp#25"Twenty-Fifth Amendment/a to the U.S. Constitution. Under § 3 the President can temporarily relinquish the reins of his office if he declares that he is "unable to discharge the powers and duties of his office." But this is the exact same ten-word phrase used in §4, which empowers the Vice President and Cabinet to declare the President "unable." Does this mean that anytime the President activates §3 he's creating precedent for §4 removal under similar circumstances? President Reagan thought so. That's why he claimed not to apply §3 when he transferred power to Vice President George Bush during a colon operation in 1985, even though there was no other constitutional justification for the transfer of power. If he was right, then §4 is an ever more potent removal power, buttressed as it has been by explicit invocations of §3 by President George W. Bush a href="http://www.voanews.com/english/archive/2002-06/a-2002-06-29-1-Bush.cfm"in 2002/a and a href="http://www.washingtonpost.com/wp-dyn/content/article/2007/07/21/AR2007072101103.html"2007/a for short-term, non-emergency medical procedures. Could the Vice President and Cabinet (or "other body" named by Congress under §4) really take the President out of commission the next time he's under anesthesia or has a similarly minor "inability"? Or if an embattled President were to step down to devote his attention to defending divhimself against impeachment as Akhil Amar a href="http://kids.law.yale.edu/amar/oped/1999Five.pdf"recommended/a for President Clinton, would that empower the V.P. and Cabinet force him out of power under §4 next time around? For that matter, could extreme unpopularity or bad decisionmaking render the President "unable" for purposes of §4?br /br //div divIn this draft of a a href="http://ssrn.com/abstract=1312846"forthcoming note/a, I suggest that the answer is 'no.' The standard for presidential inability in §§ 3 and 4 depends on which constitutional actor(s) are making the call, despite the intratextualist presumption that identical phrases in a legal text should be read in pari materia. Because the President is the sole judge of his own ability under §3, that provision embraces a wider array of potential disabilities than the same phrase in §4.br /br /Constitutional structure supports this counterintuitive result. Section 3 can't possibly cover the same set of conditions as §4, because if the President were span style="font-style:italic;"totally/span disabled he could never make the necessary declaration under §3. Legislative history supports the conclusion that §4 was designed for a more severe class of presidential inability than §3: A brief medical procedure with general anesthesia was offered as the typical occasion for invoking §3, but explicitly rejected for §4. Even though they used the same phrase to describe presidential inability in each section, the sponsors of the Amendment defined it differently "as used in" specific sections. Equating presidential inability under §§ 3 and 4 would undermine the two purposes of the Amendment?promoting Executive continuity by encouraging temporary abdications by the President, and protecting the President from a political coup.br /br /There may also be something special about constitutional provisions like §3 of the Twenty-Fifth Amendment and §6(c) of Illinois' Article V that give un-reviewable interpretive power to an individual constitutional actor. Perhaps the span style="font-style:italic;"idiosemic/span nature of these provisions invites individualized interpretations and prevents those interpretations from having any precedential value for other phrases that look similar, but lack the individual, autonomous interpreter.br /span class="fullpost"br //span/div

Full post as published by Balkinization on December 19, 2008 (boomark / email).