Academic

Gustafson on "unable to discharge the powers and duties of his office" in the 25th Amendment

By Lawrence Solum

Adam Gustafson (Yale Law School) has posted Presidential Inability and Subjective Meaning (Yale Law & Policy Review, Vol. 27, No. 2, 2009) on SSRN.  Here is the abstract:

The Twenty-Fifth Amendment allows a President to be separated from his constitutional powers and duties when either he himself (under Section 3) or the Vice President and a majority of his Cabinet (under Section 4) declare that the President is "unable to discharge the powers and duties of his office." If the same definition of presidential inability were attributed to both provisions, Section 4 would create a power of removal more expansive than the impeachment clause, and it would undermine the continuity of the Executive branch that the Amendment was designed to safeguard. This Note contends, to the contrary, that although the "unable to discharge" phrase appears identically in both sections, it embraces a more inclusive set of impairments when the President declares his own inability than when the diagnosis is made by the Vice President and Cabinet. This is because the legal meaning of Section 3 is conditioned upon its interpretation by the President, as the sole constitutional actor involved in this unreviewable decision. The Amendment's structure, legislative history, and application history all confirm that presidential inability should be defined differently depending on which constitutional actor makes the evaluation.

Very interesting student note.

One very small thought--this seems to be a topic where the interpretation-construction distinction would add a great deal of clarity.  Pace Gustafson, the problem isn't with giving the phrase "unable to discharge . . ." a single meaning (or more precisely, a single linguistic meaning).  The linguistic meaning of "unable" is not at issue.  The problem arises because the phrase is vague (in the technical sense) because it admits of borderline cases.  Gustafson's argument could then be recharacterized in terms of constitutional construction.  When the President engages in construction of the phrase, he has the option to construe "unable to discharge" broadly, but when the Vice-President and Cabinet construe the same clause, they should construe it more narrowly.

Full post as published by Legal Theory Blog on December 24, 2008 (boomark / email).