There Is A Time to Tinker with the Constitution. This Isn't It.

I find myself disagreeing with Nancy Pelosi. That doesn't make me a Republican. (No, I think wearing masks is a good idea.) But she's tinkering with the Constitution, and while that merits consideration, this stretch of time isn't the best.

Pelosi wants to get Congress involved in the enforcement of the 25th Amendment, which was passed in 1967 to make sure we have a Vice-President in case something happens to the President and he/she has to be suddenly replaced. That's been a good idea since its passage.

The last paragraph of it, though, has and is sparking controversy, especially now that the current president seems to be either obstreperously ornery, angry and defiant--which he simply could be--or unhinged in a way that normality just doesn't fit. That's the part in which the vice-president might consider stepping in as Acting President if the president is deemed unable to perform his duties.

It could mean a whole bunch of things, including mental instability. 45's behavior since his diagnosis of Covid-19 suggests to some that he has gone simply wacky, or that his wackiness is now revealed beyond all discussion. Nobody can be sure.

But the Vice-President sure won't be the one pulling the constitutional trigger. He ran with 45, after all, and the evidence would have to be so incontrovertible that decisions would have to be made that genuinely endangered the nation. Those haven't been made. Yet.

Pelosi, to her credit, says that the Congressional committee she's forming will deal with this matter, which has nothing to do with the present president. That one's tough to buy. 

C'mon, Nancy: Think back. You were also Speaker of the House when Bush-43 was president, and while a number of people didn't think much of his intellect (either), nobody suggested that a special committee be formed to go to the trouble of trying to find a place to enter the process of replacing a possibly crazy president, or at least create a process to figure out if he's actually crazy.

As it is, I want to see what she can make of such an idea (which outside of a recommendation for an amendment to the amendment, I'm not sure she can accomplish). But not now, less than a month to go before the election. The new Congress will be sworn in January 3. It may have an unusual task on its hands right away, with a contested election possible. But nobody's predicting that the House will fall into Republican hands, so she'll still be in charge. 

If this really has nothing to do with the present president, it can wait until then to approach, analyze, and make recommendations. Besides, she says she's stepping down, but only in 2022. She's still got two years to make this part of her legacy.

And, well--if the polling is reasonably accurate this time, Biden holds on to win and the challenges to his election either never actually materialize or are turned back, maybe--just maybe--some Republicans can be persuaded that the 25th Amendment really does need a kickstart from Congress to invoke, or at least establish some mechanism to do so. 

You know he was off his rocker, Democrats could say, with the additional padding of hindsight, personal attack having been swept off the table by defeat. All we're saying is: What if it happens again? With that logic, it's entirely possible that she can pull off a 2/3 majority to pass an amendment along to the Senate, objections by Gohmert, Massie, King, Gaetz and the like notwithstanding.

The 25th Amendment does say that the Vice-President and the "principal officers" of the executive departments would make the decision. But it jumps to conclusions that, at least beforehand, people generally assumed were true. But lawyers can see (and if I can, they sure can) plenty of holes in the wording. Such as:

• Does the Vice-President have to call the meeting to decide if it's time to invoke the 25th Amendment? If not, who can--any Cabinet member? Wouldn't they risk being fired? But could they call it anyhow? If such a meeting were held and all Cabinet members were fired by a president whose competency they're questioning, would they have to honor that firing, which by definition describes the incompetency? What if they challenged it? Could it end up in court? Wouldn't the time delay involved in resolving it defeat the purpose?
• Could such a meeting take place by conference call or a well-written e-mail? Nobody says they actually have to be in the same room. It might add legitimacy, though. And what's a quorum of such a meeting if someone can't make it? Does that have to be assumed?
• Does the phrase "principal officer" include Cabinet members but exclude anyone else close to the president, such as the Chief of Staff, who might throw a big monkey wrench into the whole process? What about the Press Secretary? The CIA Director? The NSA Director? Nobody's ever had such a meeting before. Could that be taken to court? Wouldn't 45, who's trying to work the system to his advantage, manipulate that process?
• It says that the Vice-President has to tell both houses of Congress that the 25th Amendment is being invoked. But would he/she have to do so immediately? There's no listing of the time period between which the decision is being made and the delivery of the decision. Ostensibly, the Vice-President could have the decision in his desk drawer and sit on it until the next time the President shows off incompetence--and then he would deliver it, giving him veto power over whatever the President would do. Maybe, considering the situation, that would be a good thing. But it's situational at best; the Vice-President's not supposed to have that kind of power. The 25th Amendment's not meant to do that. But it could happen.

In other words, there's no hurry. Whatever Pelosi thinks Congress' power might be in kick-starting the process that's at least ostensibly supposed to be in the executive branch's hands might in fact be an attempt to amend the Constitution. Nothing at all wrong with that, but that takes, first of all, a 2/3 majority of both houses. Republicans in the Senate have already firewalled that kind of decision when it became their choice to convict 45 of impeachment charges, of which he was clearly guilty (not "just a phone call" as Pence repeated with empty gravitas during his debate with Kamala Harris, as if the substance of the call apparently didn't matter), so they would find this matter much more easily dismissed. 

Of course, now that the pandemic has killed over two hundred thousand, Republicans must wear this goo all over them--they had their chance to act responsibly--and they might go from doubling down on their hold on the Senate to a genuine threat of losing it, and all kinds of control if Biden is elected, too. We can only hope and be sure to go vote.

Is it worth the conversation? And moving paper around within the halls of Congress tends to extend it. But if we actually managed to kick out this monster and his hapless helpers in a few days, a lot of this might go away.

That would be okay, too. The decision to rid ourselves of this prolonged nonsense should belong to us, not  to a potentially unwieldy mechanism that someone invented out of another exercise in problem-solving nearly 60 years ago now (JFK's assassination and the fact that the two closest successors to Lyndon Johnson, House Speaker and the President Pro-Tem of the Senate, were 73 and 86 years old, respectively). The ultimate legitimacy in a democracy still belongs to the voters. Let's hope we can pull this off.

Be well. Be careful. Wear a mask. With some luck, I'll see you down the road. 

Mister Mark