seth tillman
Wed, 14 Oct 2009 13:00:56 -0700
Just a few thoughts responding to Sandy ... There is a recent student note discussing "inability"/"disability" ... see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1312846. However, the Note focuses on the XXV Amendment, not Article II disabilty. I know of one obscure discussion of the meaning of inability from the ratification debates. Madison, at the Virginia Convention, stated: "[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security." 3 ELLIOT’S DEBATES 498; see also 1 TUCKER, 347–48 (“[I]t is presumable, that whenever a president may be actually impeached, he would be instantly incapacitated thereby from discharging the duties of his office, until a decision should take place; in which case also, the duties of the office of president, must devolve upon the vicepresident.”). Akhil Amar discusses the curious Madison passage in a footnote in his (Amar's) recent America's Constitution: A Biography. But Amar's discussion is as difficult to understand as is Madison's. Certainly Madison's statement does not sit well with the consensus modern view of the impeachment power. It may be that "inability"/"disability" (in 1787) was related to political incapacity or conflict of interest. I am not sure if it was then understood to cover what we think of as physical/mental incapacity, although the language (as we understand it today) would seem to cover both. It really is very difficult to be sure. As to your specific question regarding what Congress could have done with Woodrow Wilson ... I'd say that they could have acted prospectively before he was ill. But, once he was so ill that "presentment" was not meaningful, I'd say there was no opportunity for Congress to act to pass such a statute, at least not with out first asserting that the VP was acting-President founded on presidential inability (and then presenting the reform statute to the VP). Of course, in this latter scenario, you don't really need the statute. If, on the other hand, Congress did present to Wilson and he acted on the bill, then that would seem (at first blush) to belie any prima facie claim of disability founded on incapacity. As to your larger question -- could Congress by statute mandate that Ps and VPs undergo medical checks, I'd think the power to do so flows from the Elastic Clause (does anyone still call it that???). It seems that accurate information as to continuing capacity is necessary and proper for Congress to have in order to decide who the proper person is to which they should present bills (assuming "inability" extends to physical incapacity). If there is some substantial difficulty here I do not see it. Of course, the appointment of the medical examiner here might fall under the aegis of the Appointments Clause, or the Inferior Officer Appointments Clause, thereby precluding Congress from choosing this officer (which is probably a good thing -- given conflicts of interest). Again, I'd apply the same logic to your second question. Congress has the power to pass a statute to effectuate an incapacity determination in regard to the President and VP. But Article II does not require that before checking on the VPs status the President must be removed, incapacitated, etc., etc. Indeed, Congress needs to know if the VP is incapacitated in order to determine who should fill the Senate chair. (The House needs this informatio so that it could verify Senate authentication of bills.) If the VP is determined to be incapacitated, prior to presidential removal, incapacity, etc., then the Pro Tem fills the chair of the Senate, but the VP remains in the vice presidential office. Should the President subsequently be removed, incapacitated, etc, then the VP -- who is already determined to be incapacitated -- is passed over in favor of the officer who should succeed under the governing Succession Statute. In short, I think the inability/disability dance could be properly choreographed without stretching the Constitution. But I am on optimist. Seth
Seth Barrett Tillman http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=345891 http://works.bepress.com/seth_barrett_tillman/ FORTHCOMING: Professor Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman, 33 Harv. J.L. & Pub. Pol'y *1-11 (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1473276; and, Professor Robert F. Blomquist, Response to Seth Barrett Tillman & Geoffrey R. Stone, Beyond Historical Blushing: A Plea for Constitutional Intelligence, 2009 Cardozo L. Rev. de novo 244, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1483893, also available at http://www.cardozolawreview.com/index.php?option=com_content&view=article&id=126:blomquistdenovo244&catid=18:other-de-novo-articles&Itemid=20.
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