Constitutional Coup Averted In Illinois
The Illinois Supreme Court has just, without comment, rejected what was in essence a coup attempt by the state Attorney General, which would have installed the Lieutenant Governor in Governor Blagojevich's place. Attorney General Lisa Madigan's legal reasoning was, to put it mildly, unique. She tried to make the case that the Governor was "unfit for duty" and therefore had to be replaced so the state could continue to function. The entire episode raises a bigger question: could this ever happen to the President of the United States? The answer turns out to be: "Yes, but... it'll probably never happen."
But before we get to speculation about future constitutional crises, let's first look at what happened in Illinois. Madigan, in her role as Illinois Attorney General, attempted to get the state's Supreme Court to approve removing Blagojevich from office. Her legal reasoning was based on a slightly-vague clause in the state's constitution which was clearly meant to be applied for medical reasons. If the governor falls into a coma, for instance, it allows the Lieutenant Governor to become the Acting Governor so the state has an executive officer at all times. The clause could also be used if the governor had gone obviously insane, to remove him from power because he is dangerous to the future of the state. The case would be hard to make politically, unless the governor had blatantly gone bonkers, but legally it could be successfully made if the need ever arose.
But Madigan tried to argue something for which the clause was never intended -- that the governor was politically a liability for the state and to protect the state's future he should be declared "unfit for command." This reasoning works in military law, but Madigan appears to be the first to attempt it in civil government. For example, on a warship you would think that the Captain is the most powerful officer on board. Everyone has to follow his or her (legal) orders. Except for one person -- the ship's doctor. The highest medical officer on board has the obligation and duty to declare the Captain medically unfit for command, and the Captain cannot order him to do otherwise. If the doc gives the captain a "downcheck," then the next-most-senior officer assumes command until the Captain gets medically approved for duty. And the downcheck can happen for any viable medical reason -- including mental health. Even in pop culture, sometimes "Bones" McCoy would tell Captain Kirk he wasn't fit to command, and Kirk just had to lie back and deal with the fact.
But the state of Illinois is not a warship. Or the starship Enterprise, for that matter. And unless the governor is obviously and verifiably medically unfit to serve (being in a coma, for instance, or otherwise unconscious) removing a governor will always have political implications to it. Which is why impeachment is the only true option. Which Illinois is already beginning, meaning that Blagojevich may be gone from office -- just a little later than Lisa Madigan would prefer.
But what about the sitting U.S. President? Could such a thing ever happen on the federal level? To answer this question, we turn to the Twenty-Fifth Amendment, enacted during the Cold War when the prospect of nuclear annihilation was first considered, and the question of succession got a lot more important. Section 3 of the amendment covers what is supposed to happen when the President is temporarily unable to serve -- by being operated on, for instance, and under general anesthesia. The President is supposed to sign a letter and give it to both the Senate President Pro-Tempore and the Speaker of the House stating he will temporarily be unable to serve. The Vice President takes over as Acting President, and then when the President is able to serve again, he sends another letter saying so, and everything goes back to how it was before the temporary disability.
The only time when this would have been useful, it didn't happen. Because the President had been shot, and had no time to sign letters before being operated on to save his life. When Ronald Reagan was shot, this led to the following comical assertion by Secretary of State Alexander Haig:
Constitutionally, gentlemen, you have the President, the Vice President and the Secretary of State in that order, and should the President decide he wants to transfer the helm to the Vice President, he will do so. He has not done that. As of now, I am in control here, in the White House, pending return of the Vice President and in close touch with him. If something came up, I would check with him, of course.
This, of course, was absolute bunkum. Haig has been ridiculed ever since for saying this, which is often misquoted as: "I'm in charge here." In fact, during Reagan's time under the knife, technically nobody was in charge. We don't like to admit that, but it is true. The Vice President has absolutely no power whatsoever until that letter is signed. Anyone who follows any orders the veep gives at such a time is following an illegal order. It would be the duty of the entire military and the rest of the government to refuse to follow any such orders. The only other time I can remember where the boundaries of the Twenty-Fifth Amendment were bent (if not broken) was on the morning of 9/11. The question of what Cheney ordered, and whether Bush approved any of it before the fact has never been adequately investigated, as far as I am concerned.
But we're getting lost in the wrong section of the amendment. Because the next section clearly lays out the legal process for a coup of the President of the United States. It doesn't use the word "coup," but the end result would be the same. Here is Section 4 in full:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
So, if just over half the Cabinet voted to depose an unpopular President, and they got two-thirds of Congress to back them up, they could install the Vice President instead.
But it's nothing to get very worried about. This is why the answer to the question of whether the President could ever be deposed in such a fashion is: "Yes, but... it'll probably never happen." Because the amendment actually sets the bar higher for doing so than impeachment itself.
Impeachment begins in the House, and Articles of Impeachment must be voted out of committee and voted on by the entire House. The Senate then conducts the trial, and a two-thirds majority is required (remember the Clinton years?) to remove the President from office. But this is actually easier than what is described above, for two reasons. First, impeachment doesn't involve the Cabinet at all. And second, the House vote required for impeachment is only a majority vote, instead of two-thirds.
So if any president were in the same position Blagojevich now finds himself in -- politically radioactive, but still clinging to power -- then impeachment would be the best and easiest way to remove him or her from office. As will now happen in the state of Illinois. This is for the best, even if it may take a little longer to happen.
[Note: If you'd like to learn more what could happen next in Illinois, Greg Harris has written an excellent article which details all the possible outcomes. Harris is a member of the Illinois legislature. His article was published before the news from the Supreme Court broke today.]
Chris Weigant blogs at: ChrisWeigant.com
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Well, seeing as we had a US President appointed by the SCOTUS eight years ago, I think the claim that "it's unlikely" doesn't hold much weight.
Madigan's stunt was typical of what we have to put up with here in Illinois. Many of us have been thoroughly disgusted with Illinois politics for a very long time.
On a side note, your Ship's Medical Officer analogy isn't completely accurate. Everyone in the military, regardless of rank, has the implicit authority to do their jobs. There're other scenarios in which the orders of a Ship's Captain would be unlawful and must be refused. It's one of the common-sense concepts embraced by the military whose lack of acceptance among civilians has always amazed me.
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LewDan -
Isn't this where we get into the concept of demanding written orders? But while every military person has the duty to refuse unlawful orders (since Neuremberg at least), isn't the doctor the only one that can, in effect, usurp the Captain altogether, and remove him (temporarily or permanently) from command?
I confess I don't know all the details of this scenario, I just watch a lot of movies (and Star Trek).
-CW
Its subtle but significant. Say you're a supply officer and the Captain orders you to falsify reports on all those missing weapons. If you're foolish enough to do it YOU will be held accountable. However the Captain DOES have the authority to falsify the reports himself, which is what gets you to the written orders part.
If a Captain tries to do things counter to the orders of the Department of Defense or the President his Executive Officer or Security Personnel could also remove him. Not that anyone in their right mind, including Ship's Doc, would want to even consider it unless they REALLY had no choice. Having the right and surviving the aftermath being two different things. Then again, that's the whole point.
Lisa Madigan and her father need to go away as much as Rod.
Her grandstanding during the last week has made me nauseous, and the effort she goes through to show she is nonpartisan is transparent.
No vote from me for her in the future, and I did vote for her in the past.
Some of the things these politicians try really scare me... but what scares me more... is that most people don't know that these things can't be done.
Madigan is on the wrong course for another reason, IMHO:
Future precedent is better served by a broader cross-section of the people and their duly elected representatives saying "go."
Restores faith in the system, as opposed to people just getting more cynical that a "justice" office is being used for political ends, in this case personally so.
Justice is supposed to be blind, and government prosecutors should be recused if they have personal skin in the game.
I kind of like the idea of a civilian coup.
Isn't that what countries with parliamentary systems have?
Only in the US do we consider ourselves a democracy, yet suffer any longer than a month or so under a leader (cough) with a popularity score lower than the size of a training bra.
Good grief.
Did the AG realize she was about to hand Blago a disability pension?
(Just guessing.)
Fantastic essay!
Lot's of opiners (and whiners) on HuffPo.
Not enough EDUMACATERS.
So why haven't we impeached Bush?
Cheers.
Simple....
Bush had Congressional authorization for each and every action taken.
You can't impeach a president for that..
Michale.....
Two points:
First: No he didn't. (Not worth us wasting electrons to debate it.)
Second: As a technical matter (per a technical post), I don't think that's a legal factor. But I agree, it sure as shootin ties their own hands. Two hands in particular. ;-)
ReasonIsMyReligionIsAlreadyInTheByLineSoWhyRepeatItHere...
It was still worth going to the State Supreme Court despite the long odds of success. Clearly this route is to remove a mentally or physicaly incapacited Governor or other specified officials, but it may spur Blago to resign or temporarly give power to the Lt. Governor. I suspect that in the next several weeks, after some negotiations and making a deal with the Feds, Blago will resign.
Blago IS in a coma. He just manages to also walk around and move his jaw. The man is delusional, and Madigan's biggest mistake was failure to seek a psych evaluation. This isn't merely a parlor game to those of us who actually live in Illinois. The quicker he goes, the better. In any case, Madigan's move WAS political, and was never intended to succeed. I guess that's hard to see, all the way from sunny CA -- you know, the state that got rid of its own gov. not long ago.
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DuPageDem -
OK, touche! Amusingly enough, Ahh-nold is now in exactly the same situation as the governor we recalled. Guess his script ran out of pages or something...
Californians were relieved when Spitzer got caught, because for the first time in a long time, our governor was not the most embarassing in the nation. Then we heard from Sarah Palin, and now Blagojevich. Not so many Schwarzenegger jokes any more... whew!
:-)
-CW
Like a coup is worse than having that crook in charge.
A Trek reference!
Gotta love it!! :D
Michale.....
The good of the many outweigh the needs of the few.
Howza bout this nation try it?
AG Madigan and her father Speak Madigan of the Illinois House should both recuse themselves. Huge conflict of interest there.
I'm not a Blago fan, don't even know the guy, but every American Citizen deserves their day in court.
Illinoisans voted for him, they must go through the process and wait. I don't think the good people have to worry about the guy appointing a horse or Elvis to the Senate at this point. If what Fitzgerald says is true, well that's unfortunate, but I'll bet you a Big Jim Thompson Sandwich that what Blago said and how he said it goes on everyday in the dark rooms of states houses and behind the smoke free back room doors of Congress. Let's be honest, Earmark is just a fancy word for Bribe.
Maybe we need a People's Patriot Act on Politicians and while we're at it perhaps grant us all Telecom Immunity as we listen in on their calls and conversations. They watch and listen in on us, why can't that be reciprocated? If not then let's start pressing charges. What say you Barack?
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breakingpoint -
I must admit, I would be highly amused if Blaggy appointed a horse to the Senate. Heh.
I think your last paragraph is an excellent idea. I think any citizen, at any time, should be able to listen in to their elected officials. If it's good enough for them, it should be good enough for us.
-CW
Amusing would be SP not a horse. Can't stand her but it would be funny to watch certain people froth at the mouth.
They've actually created the scenario - "some are more equal than others."
Have we all forgotten that these guys work for US!
It might be noted that Attorney General Madigan, and her father have conspired to remove the governor from office since his election. I think an investigation into their motives might also be in order and any contact they might have had with the prosecutor should also be disclosed openly. Openness is required on both sides; I’m not convinced that this is not a plot to take over a senate seat from the Democrats. Any special election in this political circus would be slanted toward to the opposition party.
should be, a whole lot of house cleaning going on... ;)
It might have been meant well but it was a very bad idea, and would have set a horrific precedent.
Yeah, I don't blame Madigan for trying but it's a good thing the judges didn't go for it.
Thank God the Illinois court got this one right.
This was a disgusting attempt on Madigans part to play on the emotions of the good people of Illinois and boost her image in anticipation of her gubernatorial run.
If I lived in Illinois I would not vote for her if she did run in 2010, or any other year.
I do live in Illinois, and while Lisa Madigan hasn't been a bad AG, I think a lot less of her after this grab for power. I will have a hard time voting for her if and when she makes a run for governor.
The Section 4 scenario for removing the President was a subplot of the movie Air Force One. Glenn Close, as the vice-president, held out against aggressive cabinet members who wanted her to go along with the effort to remove the president from power, because he was under extreme duress due to his wife and daughter being held by terrorists aboard the plane. (The president being Harrison Ford, he was able to outfight the terrorists, regain control of the plane, and fly himself and his family to safety by means of a plane-to-plane transfer in midair. ) Amazing the things you learn at the movies!
}}}}
Amazing the things you learn at the movies!
{{{{
Don't I know it! :D
Michale......
Interesting bit of trivia. The girl that played the daughter of the President... was Liesel Anne Pritzker, cousin of Penny Pritzker who worked with Obama.
That is one of my favorite movies !!!!!
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