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Donald Trump, with hair

We have reached maximum absurdity. This will be hard to top.

It is not unreasonable to differentiate between horrible things Donald Trump has done as president and horrible things he has said. At the top of the list of his horrible acts, one might want to put his policy decision to prosecute all adults who crossed the border unlawfully, with the result of separating their children from them, creating chaos and leaving the total number of children who have been in federal custody under the policy impossible to determine.

Because he has his tweet thumb always at the ready, keeping track of crazy statements is more difficult, since the stream is constant. Devising and implementing a policy of prosecuting all adults who cross the border unlawfully and separating their children from them takes time and coordinated effort. Given the utter vacuity of Trump’s gray matter, composing and typing a tweet is apparently the work of minutes, perhaps seconds.

We now have, however, a very strong contender for most boopy-shooby claim by Trump yet. This is not necessarily his most morally reprehensible tweet. He seems to have stopped, for now, anyway, retweeting material from neo-Nazis, which beats the current crazy as a candidate deserving our reprobation. The scale here is just what is most totally loony-tunes. In this instance, it was, again, not a statement that Trump himself uttered, but one he heard on his favorite “news” source, Faux “News,” from his most reliable nut job “commentator” on the network of the paranoid set, Alan Dershowitz. To wit:

In the fewest possible words, the core claim here is that invoking an Amendment to the Constitution violates the Constitution. All one can do is shake one’s head in wonder. Lawd have mercy.

In case you were worried that you just don’t know enough constitutional law to understand the point, that is not the problem. The claim is as entirely absurd as it sounds on its face. It is galloping illogic on meth.

Let us unpack a bit. The United States Constitution, in Article V, reads: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…” [emphasis added].

This is necessary. The Founders had no way of knowing exactly what parts of the Constitution we would argue over in the future or how. They did not even necessarily anticipate that the Supreme Court would become the final arbiter of the meaning of the Constitution. The document itself nowhere gives them that power on its face. They did know, however, that legal disputes are endless and that disagreements about the meaning of the Constitution would arise. To add to the ordinary difficulties of legal interpretation the added, unnecessary task of deciding how much weight to assign to amendments would have been a very bad idea indeed. Also the whole logic of an amendment process precisely is that future generations would want and need to change the document, and making amendments in any way subordinate to the original portion would render that project impossible. Several amendments, starting with the twelfth, change directly parts of the original Constitution, so amendments must have the same force of law as the Constitution that the founders wrote, assuming proper adoption as prescribed above.

It is certainly the case that laws can sometimes contradict themselves. However, to suggest that the 25th Amendment in any way contradicts any other provision of the Constitution, which is one way to try to make sense of the claim the Dersh makes and Trump retweets above (!), is rank nonsense.

The 25th (as I shall refer to it for the remainder of this essay — typing “Amendment” gets tiring) has four sections. It became part of the Constitution (see above) in 1967. The National Archives appends a helpful note at the beginning of the text: “Note: Article II, section 1, of the Constitution was affected by the 25th amendment.” That is, this Amendment has to have full effect as law just the same as the rest of the Constitution.

The first section simply codifies what had been automatic practice since William Henry Harrison became the first president to die in office in 1841 — his vice president, James Tyler, became president. The 25th just codifies this practice as law. This seems so obvious that it is what we have done every time a president has died in office. No president has died in office since 1967, so this section of the 25th has never actually operated.

Section two came in handy very soon, in contrast. It provides that, in the event of a vacancy in the vice presidency, the president may nominate a replacement, who shall take office after a majority vote in both Houses of Congress. Before Nixon’s scandal took over, his first vice president, Spiro Agnew, had to resign in 1973 because of his own scandal. Nixon chose Republican back bencher Gerald Ford of Michigan to replace him.

Section three allows the president to notify the leaders of Congress that he is unfit to discharge the “powers and duties” of the office, then to reclaim those powers and duties upon notice to the same parties. Ronald Reagan relied on this provision to devolve the powers and duties of the presidency onto George H.W. Bush for eight hours when he had to undergo surgery in 1985. Once he was awake and alert (!) after the surgery, he then reclaimed those powers and duties.

Dersh must refer to section four, by far the longest in the 25th, in his boopy-shooby tweet above. Like section three, it allows for transfer of the powers and duties of the presidency to the vice president, but with the critical difference that, under section four, the vice president and a majority of cabinet members, or some other body Congress designates (which they have not done), may so transfer against the wishes of the president. Many people have taken to calling on Pence to invoke this provision on the logic that Trump is manifestly incapable of exercising the powers and duties of the presidency, at least in a sufficiently thoughtful and responsible manner.

Section four further allows the president to reclaim the powers and duties of the office, unless, within four days, the vice president and a majority of cabinet officers again notify the leaders of Congress that the president is still unable, at which point Congress gets to decide, with a two thirds majority vote required to continue the finding that the president is unable. In several ways, section four of the 25th is an exercise in legislative malpractice. It does not have the effect of removing the president from office, but designates the vice president “acting president,” a term that has no definition elsewhere in the Constitution or U.S. law at all. In this and other ways, it is embarrassingly sloppy.

So the 25th could take the “powers and duties of the office” away from Trump, but it would not be a very clear cut solution.

But in terms of Dersh’s craziness above, invocation of the 25th in no way involves “circumvent[ing] the election.” That is rank nonsense. It does not state such because the point is too obvious to require statement: it assumes that the president is duly elected. The whole point is precisely that the president is properly in office, but no longer competent to do the job and therefore that the vice president needs to take over.

We’ve long known that Trump is crazy and stupid. Anyone who has been paying attention knows that Dershowitz is equally crazy and stupid, just less famous for not being president.

It is not surprising that Trump is too stupid and crazy to recognize how stupid and crazy this claim by the Dersh is.

Written by

Uppity gay, Buddhist, author, historian.

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