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Constitutional Cliffhangers

Constitutional Cliffhangers

Copyright Date: 2012
Published by: Yale University Press
Pages: 224
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  • Book Info
    Constitutional Cliffhangers
    Book Description:

    The United States Constitution's provisions for selecting, replacing, and punishing presidents contain serious weaknesses that could lead to constitutional controversies. In this compelling and fascinating book, Brian Kalt envisions six such controversies, such as the criminal prosecution of a sitting president, a two-term president's attempt to stay in power, the ousting of an allegedly disabled president, and more. None of these things has ever occurred, but in recent years many of them almost have.

    Besides being individually dramatic, these controversies provide an opportunity to think about how constitutional procedures can best be designed, interpreted, and repaired. Also, because the events Kalt describes would all carry enormous political consequences, they shed light on the delicate and complicated balance between law and politics in American government.

    eISBN: 978-0-300-17801-2
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
    (pp. xi-xii)
  5. Introduction
    (pp. 1-10)

    Electing, punishing, and replacing presidents can get tense. Ideally, the constitutional rules would be clear on such occasions, but often they are not. This book examines six presidential constitutional cliffhangers: scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.

    The scenarios covered in Chapters 1 through 6, respectively, are:

    1. a president is criminally prosecuted;

    2. a president pardons himself;

    3. cabinet members try to oust an allegedly “disabled” president, who in turn tries to oust them;

    4. with the president and vice president dead, the...

  6. 1 Prosecuting a President
    (pp. 11-38)

    For as long as three has been a presidency, Americans have debated whether sitting presidents can be prosecuted. There are good arguments on both sides, and nobody has tried to prosecute a president yet, so reasonable minds have differed and the issue remains unresolved. But if a prosecutor ever brings criminal charges against a sitting president, the question will no longer be avoidable. This chapter discusses how such a case might arise, what the two sides would argue, and how such a controversy might be prevented.¹

    As they were designing the presidency, the delegates at the Constitutional Convention in 1787...

  7. 2 The Presidential Self-Pardon Controversy
    (pp. 39-60)

    Can a president commit a crime and then pardon himself for it, avoiding prosecution and punishment? As in the last chapter, nobody knows, and America can probably only find out the hard way: after a politically charged prosecution, a constitutional brouhaha, and a controversial Supreme Court decision.¹

    A self-pardon would only happen in an extreme situation, but such situations are no less imaginable for being extreme. Shortly before President Nixon resigned, his lawyer advised him that he could pardon himself, and Nixon considered doing it. More recently, the legal travails of Presidents Reagan, Bush, Clinton, and Bush have led some...

  8. 3 Removing a “Disabled” President
    (pp. 61-82)

    Unlike the other three sections of the Twenty-Fifth Amendment, Section 4 has never been used. Still, as numerous books, movies, and television programs have recognized since the amendment was ratified in 1967, Section 4 offers a lot of potential drama. It would be spectacle enough to have a disabled president like our fictional Frances Philips (whose story is based on instances of similar behavior by real presidents). A full-blown power struggle might be more excitement than we can handle.²

    Presidential disability and succession rules should be certain and swift, because it is obviously important to know exactly who is president...

  9. 4 The Line of Succession Controversy
    (pp. 83-105)

    Every american schoolchild learns that the Speaker of the House and the president pro tempore of the Senate (PPT) follow the vice president in the line of succession. Fictional portrayals of presidential disasters often draw on this rule too. But these versions of presidential succession typically ignore a crucial issue that has been worrying important politicians and legal scholars for over two hundred years: it’s constitutionally problematic for the Speaker and PPT to be in the line of succession. Not all legal experts agree on this point, but most of them do, and their criticism is harsh. They call the...

  10. 5 Impeaching an Ex-President
    (pp. 106-132)

    Can presidents be impeached even after they have left office? There is no simple constitutional answer. Congress has conducted a late-impeachment trial, but with ambiguous results. Scholarly opinion on the question is divided. There can be only one answer, though; either Congress can impeach and try former presidents or it can’t.¹

    Unlike in previous chapters, the stakes are relatively low here; we are not talking about two presidents wrestling for control of the White House, or even a president going to prison. Moreover, Congress will rarely want to impeach an ex-president anyway. But contemplating late impeachment gives us insight into...

  11. 6 The Third-Term Controversy
    (pp. 133-157)

    Everybody knows that the president of the United States is limited to serving two terms. The Twenty-Second Amendment, ratified in 1951, spells it out: “No person shall be elected to the office of the President more than twice.…”* The Twelfth Amendment keeps two-termers out of the vice presidency too: “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President.”

    The law is funny, though. When people have strong enough incentives and good enough lawyers, they may take things that everybody knows aren’t legal and find a way to make them legal after all. Politics...

  12. 7 Getting Out of Trouble
    (pp. 158-180)

    Some of the cliffhangers in this book are more likely to occur; others are less likely. Some would cause a “crisis”; others would only rise to the level of “interesting predicament.” Some would be resolved in court; others in Congress, the White House, or the streets. Some would be easy to prevent or fix; others would be practically impossible. With all of them set out, we can identify some common threads and some lessons learned.

    This chapter focuses on three areas: (1) ways that law interacts with politics when constitutional cliffhangers are resolved; (2) ways that constitutional weak spot get...

  13. NOTES
    (pp. 181-240)
  14. INDEX
    (pp. 241-252)