US Constitution 101

[Lost in Translation]

Twenty Fifth Amendment

 

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Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

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.

 

https://www.law.cornell.edu/constitution/amendmentxxv

 

Commentary on the 25th Amendment

 

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The 25th Amendment, proposed by Congress and ratified by the states in the aftermath of the assassination of President John F. Kennedy, provides the procedures for replacing the president or vice president in the event of death, removal, resignation, or incapacitation.  The Watergate scandal of the 1970s saw the application of these procedures, first when Gerald Ford replaced Spiro Agnew as vice president, then when he replaced Richard Nixon as president, and then when Nelson Rockefeller filled the resulting vacancy to become the vice president. 

 

The 25th Amendment describes the transfer of power within a President's or Vice President's term in the event of incapacitation or death.

 

Let's break it down.

 

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Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

 

This is pretty clear. If the President dies or quits then the Vice President becomes President.

 

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Section 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

 

This is also pretty clear. If there is no Vice President then the President will chose a Vice President and then Congress will confirm his choice with a simple majority.

 

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Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

 

This is also pretty clear. If the President submits in writing to the Congress that he cannot perform his duties then the Vice President will take over as acting President. When the President submits in writing that he can once more perform his job then the Vice President steps down and the President resumes his duties.

 

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Section 4.

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.

 

Section 4 is a bit more complicated. This describes the process to follow when the Vice President and the majority of the heads of the various executive departments (basically the President's Cabinet) feel that the President is unable to discharge his duties. When this happens they can submit in writing to the Congress their desire to have the Vice President assume the duties of President. The Vice President will continue to serve as acting President until the President submits in writing that he is fit for duty.

 

Here's the complicated part. If the Vice President and the majority of the heads of the executive departments feel that the President is still unable to fulfill his duty then they can submit in writing again that the Vice President should once more assume the role of President. When this happens the Congress steps in and settles the issue.

 

Here's some more information on the 25th Amendment for those who are interested.

 

https://en.wikipedia.org/wiki/Twenty-fifth_Amendment_to_the_United_States_Constitution#Invocations

 

Edited November 2, 2018 by Lost in Translation

[Lost in Translation]

Here's an interesting factoid about the 25th Amendment:

 

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1981: Reagan assassination attempt

 

Following the attempted assassination of Ronald Reagan on March 30, 1981, Vice President George H. W. Bush did not assume the presidential powers and duties as Acting President. Reagan had been rushed into surgery with no opportunity to invoke Section 3; Bush did not invoke Section 4 because he was on a plane at the time of the shooting, and Reagan was out of surgery by the time Bush landed in Washington. In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section 4 should have been invoked.

 

https://en.wikipedia.org/wiki/Twenty-fifth_Amendment_to_the_United_States_Constitution#Invocations

 

Apparently there were several hours in March of 1981 when President Reagan was incapacitated and Vice President Bush was not acting as President because he was on an airplane and could not submit in writing to Congress. For that time we technically had no President. It's good the Russians did not know this. That probably would have been an ideal time to launch a preemptive nuclear strike since the President would not be able to order a counter attack... Come to think of it I'm glad that didn't happen.

[Lost in Translation]

Twenty Sixth Amendment

 

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Section 1.

The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Section 2.

The Congress shall have the power to enforce this article by appropriate legislation.

 

https://www.law.cornell.edu/constitution/amendmentxxvi

 

The 26th Amendment lowered the voting age from 21 to 18.

[Lost in Translation]

Twenty Seventh Amendment

 

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No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

 

https://www.law.cornell.edu/constitution/amendmentxxvii

 

Congress can vote themselves a pay raise but the raise cannot take effect until an election has occurred. In other words give the people a chance to vote the scumbags out!

 

[Lost in Translation]

And this, my friends, is the entirety of the US Constitution. We're done! I hope you have enjoyed this and I hope this gives substance to the many political debates on this forum and in your everyday life.

 

-Lost in Translation

[Marblehead]

Thanks for doing that LiT.

 

I enjoyed it and honestly, it is the first time I have read it in its entirety.

 

In my understanding, any suspected violation of the above would be a case for the Supreme Court to hear even if a lower court has already ruled on it.

 

[Stosh]

Nicely covered subject , and it even has a terminus. Well done . 

[windwalker]

The recent appointment of an interim AG  puts the constitution to the test

 

https://www.breitbart.com/politics/2018/11/10/klukowski-the-legal-case-for-matthew-whitakers-appointment-as-acting-attorney-general/

 

 

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The Appointments Clause of Article II, Section 2, Clause 2 of the Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall Appoint … [Principal] Officers of the United States.”

Often that means that when a top government position – called a “principal officer” – becomes vacant, it remains unfilled until the president nominates someone and then the U.S. Senate has time to vet, hold committee hearings, have floor debate, and confirm the nominee. The Constitution should allow for some degree of “play in the joints” to handle such situations.

 

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Congress’s answer was the Federal Vacancies Reform Act of 1998 (FVRA), which provides several routes for someone to fulfill the duties of these important positions while the nomination and confirmation process plays out. First, 5 U.S.C. § 3345(a)(1) allows the “first assistant” to a Senate-confirmed officer to serve as the acting officer on a temporary basis. Additionally, 5 U.S.C. § 3345(a)(2) allows the president to name a person who has served in that department for at least 90 days at a pay level of GS-15 or higher – essentially a top-level career civil servant or non-Senate political appointee – to likewise serve as the acting officer.

 

 

Is he acting within the constitution or not?

[Marblehead]

But keep in mind, the appointment was that of "Acting AG".  A place holder until Trump is ready to make an appointment that must be approved by the Senate.

 

 

[windwalker]

8 minutes ago, Marblehead said:

But keep in mind, the appointment was that of "Acting AG".  A place holder until Trump is ready to make an appointment that must be approved by the Senate.

 

 

 

 

There is a time limit 90 days that one must have served before one can act as an intern appointment.

 

I didn't see a time limit for how long an intern appointment can be used.

 

Brilliant move it allows him to a point someone of his choosing without going through the process well forcing them to use the process for someone that he chooses.

 

Either way, they have to deal with someone of his choice.

 

It's called being the president, exercising leadership.

Edited November 11, 2018 by windwalker

[Marblehead]

Yeah, we will see how this evolves as there is a bit of criticism ongoing.

 

[windwalker]

3 minutes ago, Marblehead said:

Yeah, we will see how this evolves as there is a bit of criticism ongoing.

 

 

Doesn't matter I don't think there's any thing that is against the Constitution.  It's within his powers to apoint an intern AG.

 

As outlined in the previous post.

 

 There are many in the public sector that don't read or understand the Constitution.

 

There are those that do but try to go against it on both sides.

[windwalker]

"Congress’s answer was the Federal Vacancies Reform Act of 1998 (FVRA), which provides several routes for someone to fulfill the duties of these important positions while the nomination and confirmation process plays "

 

Check and mate, a masters move

[windwalker]

The problem for the Democrats they can't break the institutions by which one controls power in seeking power.

 

Which is why what is called a soft coup has already happened, is happening.

 

Intuitively most Americans understand what is happening and is happening, which might be why this section gains a lot of attention that some comment on.

 

 

Edited November 11, 2018 by windwalker

[Pilgrim]

4 hours ago, windwalker said:

"Congress’s answer was the Federal Vacancies Reform Act of 1998 (FVRA), which provides several routes for someone to fulfill the duties of these important positions while the nomination and confirmation process plays "

 

Check and mate, a masters move

Art of the deal, art of the deal. They are dealing with a successful brilliant buisness man.

 

I would like to know what Trumps I.Q. Is rated at, I remember back in the 80’s he was regarded as a brilliant super phenomena.

[Pilgrim]

4 hours ago, windwalker said:

The problem for the Democrats they can't break the institutions by which one controls power in seeking power.

 

Which is why what is called a soft coup has already happened, is happening.

 

Intuitively most Americans understand what is happening and is happening, which might be why this section gains a lot of attention that some comment on.

 

 

Lucas was writting on what he saw happening, the formation of an empire while the one who became Emporer and dissolved the senate screamed democracy the whole time. “The Republic is not what it once was”

 

 

[Lost in Translation]

5 hours ago, windwalker said:

There is a time limit 90 days that one must have served before one can act as an intern appointment.

 

I didn't see a time limit for how long an intern appointment can be used.

 

I finally read the link you posted. I'll re-link below.

 

https://www.breitbart.com/politics/2018/11/10/klukowski-the-legal-case-for-matthew-whitakers-appointment-as-acting-attorney-general/

 

According to the article, everything is perfectly legal.

 

Quote

The Appointments Clause of Article II, Section 2, Clause 2 of the Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall Appoint … [Principal] Officers of the United States.”

 

Often that means that when a top government position – called a “principal officer” – becomes vacant, it remains unfilled until the president nominates someone and then the U.S. Senate has time to vet, hold committee hearings, have floor debate, and confirm the nominee. The Constitution should allow for some degree of “play in the joints” to handle such situations.

 

Congress’s answer was the Federal Vacancies Reform Act of 1998 (FVRA), which provides several routes for someone to fulfill the duties of these important positions while the nomination and confirmation process plays out. First, 5 U.S.C. § 3345(a)(1) allows the “first assistant” to a Senate-confirmed officer to serve as the acting officer on a temporary basis. Additionally, 5 U.S.C. § 3345(a)(2) allows the president to name a person who has served in that department for at least 90 days at a pay level of GS-15 or higher – essentially a top-level career civil servant or non-Senate political appointee – to likewise serve as the acting officer.

 

Either way, that acting officer can serve for 210 days (seven months), and that time is extended if the president has nominated a permanent replacement but the Senate has not yet voted on the nominee.

 

To prevent principal positions within government from remaining vacant for extended periods, the President has the power to appoint a temporary placeholder to these positions. The placeholder must be the "first assistant" to the office vacated or a GS-15 (or higher ranking) officer who has served at least 90 days withing that department. In either case they may serve for a maximum of 210 days. This give the Senate time to vet and approve a permanent appointment.

 

As per Whitaker himself:

 

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Whitaker was the highest-ranking person at DOJ who was not Senate-confirmed, as chief of staff to the attorney general. He is a “Schedule C” political appointee, meaning that he was appointed by the Senate-confirmed head of DOJ, the attorney general. He is at the top pay level in the department (above GS-15), and has held that position for more than 90 days. President Trump invoked his authority under 5 U.S.C. §3345(a)(2) to name Whitaker as acting attorney general until the president can nominate, and the Senate can confirm, a new attorney general.

 

The critics of this move are not arguing that what Trump has done is illegal. Rather, they are arguing that the FVRA of 1998 is unconstitutional.

 

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Legal critics argue that the Constitution requires Senate confirmation as a check on the president’s power, ensuring that no president can flood the zone with legions of unqualified loyalists who would never be approved by the Senate. They argue that FVRA provides an end-run around that check, and thus that those provisions are unconstitutional.

 

The counter argument to this is simply that without the ability to appoint temporary placeholders the government would be crippled every time a new party assumed power.

 

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Any other conclusion would lead to the absurd choice of either crippling the entire U.S. government – including national security functions – until the Senate goes through the entire confirmation process, or persuading leaders of the opposing political party to stay in their powerful positions for weeks or months until replacements can be both nominated and confirmed.

 

Thanks @windwalker for bringing this our attention.

 

[dawei]

On 11/1/2018 at 9:38 PM, Lost in Translation said:

And this, my friends, is the entirety of the US Constitution. We're done! I hope you have enjoyed this and I hope this gives substance to the many political debates on this forum and in your everyday life.

 

-Lost in Translation

 

Yes, well done !

 

I'm glad it is here.  I can go back and re-read as I skipped parts as I was not able to keep up with your speed of posting 

 

Maybe this is a seed for such informative threads

 

The interim AG comments were very helpful.  Great stuff. 

 

[Lost in Translation]

8 minutes ago, dawei said:

Maybe this is a seed for such informative threads

 

I was motivated by @Marblehead and his Mair threads. 

[Pilgrim]

Well done and thank you.

[windwalker]

9 hours ago, Lost in Translation said:

In either case they may serve for a maximum of 210 days. This give the Senate time to vet and approve a permanent appointment.

 

 

Thanks  what I had wondered about, must have missed it...

 

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The critics of this move are not arguing that what Trump has done is illegal. Rather, they are arguing that the FVRA of 1998 is unconstitutional.

 

How interesting. I wonder if any now arguing against it now, voted for it then.. 

Funny in a way...

Edited November 12, 2018 by windwalker

[windwalker]

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The sponsor of the bill was Senator Fred Thompson of Tennessee, then chairman of the Senate Governmental Affairs Committee. Cloture was not invoked to have a final vote on this bill in the Senate.

 

The division was mainly on partisan lines with mostly Republicans in support of the bill. The cloture vote failed on September 28, 1998 by a margin of 53-38. West Virginia Senator Robert Byrd was the only Democrat voting in favor of closing debate.[5]

 

No action was seen in the House on this bill, however the legislation was added to the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (H.R. 4328), which finished the appropriations process for Congress for Fiscal Year 1999. The omnibus bill passed the House of Representatives on October 20, 1998 by a vote of 333–95.[6]

 

It then passed the Senate the following day on October 21, 1998 by a vote of 65–29.[7] President Clinton signed the bill the same day and it became Pub.L. 105–277.

 

 

some of the history... a short clip explaining whats going on