The Fatal Flaw in the Impeachment Clauses

I argued in my post on 8/26/19 that there is a fatal flaw in the 25^th Amendment in all those cases in which the president, although in fact no longer up to the responsibilities of the office, is determined to stay in power.  

Unfortunately, contemporary politics has produced a similarly baleful defect in the impeachment process. It is so clear cut it could almost be a theorem of game theory. It’s the Senate.

Can Anyone Still Believe that “Russia, if you’re listening . . .” Was a Joke

Some people in Congress and in the media had the temerity to suggest that it might be an invitation to a hostile foreign power to interfere in the 2016 election to implore, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”  The president defended himself by explaining that he said it as a joke. “Of course I was being sarcastic.” (Interview on Fox and Friends.); "[I]n jest and sarcastically, as was apparent to any objective observer." (Written answers to Mueller questions.)  At a campaign rally he made fun of the media for not realizing, that it was all a joke.

In a post of June 9 this year, I examined Trump’s defense and the “in jest” defense to solicitation charges more generally. I was skeptical. Subsequent developments, including the recent dramatic developments seem to confirm that skepticism was not amiss.

Socialism Is Democracy Extended.

There has been a centuries-long trend of growth in the share of the population having a serious say in the way things run. Significant exceptions are easy to find and there have been terrible reversals, but still it is a big picture trend. I will call the agents behind reallocation of power from smaller to larger social groups “the left,” conceding that this is an oversimplification as well as anachronism, the “left/right” terminology arising only with the French Estates General.

The Presidential Emolument Clause

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.  Art II, Sec 1, cl 7

Guns don’t kill people, true -- in exactly the same way ricin and hand grenades don’t kill people.

There is a perfectly good sense in which guns don’t kill people, but it is not a sense that has any implications for gun control policy.

The Fatal Flaw in the 25th Amendment

We can anticipate that the amendment will sometimes work just fine. If the president falls into a coma, the vice president and “the principal officers of the executive departments” (presumably the cabinet) will certify this fact to the speaker of the House and the president pro tempore of the Senate (now always the majority leader), and the vice president will take on the presidential duties.

What, however, if the president is conscious and functioning but seriously mentally impaired, an incident of that impairment being an inability to recognize it. The president might then fight a 25^th Amendment certification.

Bad Treatment of Children to Deter Refugees Conflicts with the Constitution’s Corruption of Blood Clause

Causing immigrant children to suffer to deter their parents does not violate the Corruption of Blood Clause, which concerns treason convictions:  “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood . . .” (Art. III, Sec. 3, Cl. 2.).  The clause, however, yet bears on the permissibly of this administration tactic.