Constitutional Legislation Prof Weblog

Constitutional Legislation Prof Weblog

This is a limited Q&A on some of the much more frequent constitutional queries associated to Wednesday’s insurgency:

The Twenty-Fifth Modification

What is it?

Section 4 of the 20-Fifth Modification supplies a four-phase procedure for determining when a President “is unable to discharge the powers and obligations of . . . workplace . . . .” Section 4 arrives into participate in when a sitting down President are not able to or will not identify for him- or herself that he or she is so not able. (Segment 3 supplies the approach for a President to make this willpower for him- or herself, e.g., to briefly designate him- or herself as unable to discharge the responsibilities when he or she goes in for a health care procedure that could render the President quickly not able to do the career.) If productive, a Area 4 course of action would make the Vice President the “Performing President.” 

How does it work?

Section 4 has four methods:

Phase 1: The VP and a vast majority of the principal officers of the govt departments (the cabinet) ship a penned declaration of inability to the President Pro Tem of the Senate and the Speaker of the Household. (There are 15 govt departments, so a bulk is 8. Section 4 alternatively lets “this kind of other entire body as Congress might by regulation supply” to provide this purpose. But there is now no “these other human body.”) When this comes about, the VP automatically gets Performing President and assumes the powers of the presidency.

Action 2: The President could then send a letter to these congressional leaders stating that he or she has no disability–in other words, contesting the judgment of the VP and the cabinet. Note that the President is not essential to do this. If the President would not do it, the VP proceeds as Performing President. You will find no time limit for the President to submit this transmission.

Phase 3: The VP and a majority of the principal officers of the government departments can ship another transmission to the congressional leaders, but need to do so within just 4 days of the President’s transmission. If so, then the VP remains Acting President. (There is some disagreement about who would have the powers of the presidency in the course of the time period concerning the President’s transmission and the VP/cabinet’s re-submission. There is excellent textual and historical evidence that the VP would keep on being Performing President all through this period.)

Stage 4: Congress shall assemble within just 48 several hours to come to a decision the difficulty it will have to make a selection in 21 days (of receipt of the past transmission (in Move 3), or, if not in session, following it is necessary to assemble). If Congress votes by 2/3 in each chamber that the President is unable to discharge the duties of workplace, then the VP remains Acting President. “[O]therwise, the President shall resume the powers and duties of his workplace.” 

What does it suggest for President Trump?

If the VP and cupboard activate Segment 4, VP Pence is probable to come to be the Acting President for the relaxation of President Trump’s phrase, no make any difference what President Trump does. Which is simply because the VP would grow to be Performing President soon after Phase 1, and because the VP and the cabinet would virtually undoubtedly comprehensive Step 3 (owning by now dedicated to Stage 1). At that place, Congress has a complete 21 times–days in which the VP would be Acting President–which would carry us beyond January 20, the day of President-Elect Biden’s inauguration. (Congress could very easily drag its feet and avoid a vote till following January 20.)

Here is a great Congressional Investigation Support report on the 20-Fifth Amendment.


What is it?

Impeachment is a two-phase process by which Congress can take away a sitting President from office and ban the President from keeping future workplace. In accordance to the Congressional Exploration Provider, “[i]t seems that federal officers who have resigned have still been considered to be inclined to impeachment and a ban on holding foreseeable future business.” A pardon isn’t going to get the job done on impeachment. An impeached unique could also be issue to prison liability.

How does it do the job?

Impeachment is a two-stage process:

Action 1: The House votes to impeach. This needs only a bare vast majority. 

Step 2: The Senate then holds a trial and votes to convict. Elimination from office requires a 2/3 vote. But beneath Senate apply, a bare majority could vote to reduce the President from holding long run business.

What does it necessarily mean for President Trump?

Congress could take away President Trump from business office, or ban him from keeping business in the long term, or each. Congress could ban President Trump from keeping potential business office, even if he resigns from workplace initial. Congress could dispense with its everyday impeachment treatments (which choose a for a longer time time) and move very rapidly, even in advance of January 20. That is for the reason that impeachment proceedings are non-justiciable (the courts will not hear troubles to them), and President Trump hence couldn’t problem an impeachment course of action in court.

Here’s an exceptional Congressional Investigation Service Report on impeachment.

Presidential Resignation

President Trump is no cost to resign from workplace at any time. There are no limits on this. If he resigns, less than Segment 1 of the 20-Fifth Amendment, “the Vice President shall turn out to be President.”


What is it?

The President has the electricity to pardon persons for federal (but not state) crimes. But the President can pardon for crimes arising from past conduct only the President cannot pardon for foreseeable future acts. (But by pardoning for past conduct, the President can insulate men and women from future indictments or convictions.) The pardon ability is likely not reviewable in the courts, while an improper physical exercise of the pardon electricity could be an impeachable offense.

The Justice Office has long held that a President are not able to pardon him- or herself. (The OLC memo is right here.) But we’ve hardly ever confronted that scenario, and we have no court docket rulings. 

You can find a question as to irrespective of whether the President can concern a blanket pardon, or irrespective of whether the President ought to recognize the precise criminal habits. This has hardly ever been tested.

What does it signify for President Trump?

President Trump cannot pardon himself. If he tries–and tries to use his self-pardon as a defense in a foreseeable future federal prosecution–he will likely fail. But President Trump could resign from business, or delegate authority to the VP, and VP Pence (as Performing President) could pardon him. (See the discussion on the Twenty-Fifth Modification, earlier mentioned.)

VP Pence could not pardon President Trump for state crimes. The pardon electrical power only functions for federal offenses.

Presidential Immunity

What is it?

The President enjoys specific immunities from the legislation by advantage of the President’s distinctive situation in our constitutional system. For case in point, the President is completely immune from civil liability for formal steps. But the President is not immune from civil lawsuits for behavior prior to coming to place of work. 

The Justice Department has long held that a sitting President is immune from federal criminal prosecution although in place of work. This is not uncontroversial, nonetheless, and it is really under no circumstances been examined. At the identical time, DOJ has also extensive held that a President is not immune from federal prison prosecution immediately after the President leaves office environment. (This is the most current DOJ/OLC memo on this.) 

The Supreme Court docket ruled just this previous summer that a sitting President is not certainly immune from all condition criminal procedures. President Trump is not immune from condition legal investigations and far more, and he will delight in no immunity from state prison indictments or convictions when he leaves business.

What does it mean for President Trump?

President Trump is subject matter to federal and point out felony indictment and conviction for behavior although in place of work when he leaves workplace, and it’s possible faster. Usually, the DOJ has not pursued felony costs versus a former President. But the Structure does not forbid this. 

A pardon, of program, would insulate President Trump from future federal legal prosecution.