From a friend...

TORTURING THE TWENTY-FIFTH

Peter M. Shane

When America’s first woman President, in the Geena Davis-Donald Sutherland-led Commander-in-Chief issued an executive order commanding clemency in a state criminal case, I knew that show was a goner. Any President who thinks she commands the apparatus of state criminal law doesn’t deserve a second season.

Following the April 2 episode of 24, however, my spirits are truly crushed. To friends and family, I have defended Kim Bauer’s hiring at CTU, the elevation of a Democratic President who looked like Richard Nixon, and, of course, years of barbarous and misleadingly productive torture. But, after what happened to the Twenty-Fifth Amendment between 9 p.m. and 10 p.m. on the sixth worst day in the life of Jack Bauer, I am at a loss for excuses.

For those who missed this hour, including any of my Ohio State colleagues who may have been watching the heartbreaking end of our basketball season, this was the constitutional scenario:

Vice President Dick Ch . . . uh, I mean, Noah Daniels, played by Powers Boothe, invoked the Twenty-Fifth Amendment to remove from office the newly resuscitated President Wayne Palmer, played by D. B. Woodside. Palmer recovered just in time to call a halt to a nuclear attack Daniels commanded while Palmer lay in a coma.

Those voting in favor of the Vice President’s challenge included only seven of the fourteen people in President Palmer’s cabinet, and the vote appeared to fail. The Attorney General correctly opined that the President could be removed only by the Vice President and a majority of those others qualified to vote.

The first and lesser problem is that the Attorney General referred to those qualified to vote as “the cabinet,” and there then ensued an impassioned debate over whether the National Security Adviser, Karen Hughes, who supported the President, was actually a member of the cabinet. (She had earlier resigned, but had withdrawn her resignation.)

The Twenty-Fifth Amendment, however, does not give the vote to “the cabinet.” Instead, it empowers “the principal officers of the executive departments or of such other body as Congress may by law provide.” The National Security Adviser is not the principal adviser of an executive department, and Congress has not yet provided that she is entitled to be part of the group authorized to determine presidential disability.

Had this been the only glitch, I suppose I could live with it. I really don’t know all the laws that Congress may have added to the U.S. Code between the second Bush Administration and the beginning of the Wayne Palmer era. They obviously did something about the executive establishment because we currently have fifteen “executive departments,” and President Palmer has only thirteen. (Maybe Agriculture and Interior merged? HEW was reunited?) In the National Security Adviser Empowerment Act of 20-Whatever, perhaps Karen Hughes was given an executive department to run and duly enfranchised.

But the next step was unforgivable. When the Vice President tried to invalidate Karen Hughes’ vote, the AG stepped in to say that this was a legal question to be decided by . . . the courts. And not just any court. The Supreme Court. The Supremes stepped into the fray and demanded briefs just as soon as the Attorney General gave someone a call. (The Clerk? The Chief Justice? Who knows?)

It would be bad enough that neither the Attorney General, nor his cabinet colleagues, not to mention the Supreme Court itself had ever heard of the rule against advisory opinions. Even George Washington couldn’t get the Court to give him free legal help.

Maybe viewers were to think that the Court would have to step in because the nation was in crisis and the Constitution failed to anticipate such an impasse. Call it Bush v. Gore Redux.

That doesn’t wash, however, because the Twenty-Fifth Amendment does anticipate such an impasse, and it says who is to resolve a disagreement between the Vice President and the President. The answer is, Congress.

The Vice President and a voting majority can remove the President. The President can reclaim his office by providing an immediate certification to Congress of “no disability.” The Vice President and his supporters can re-oust the President, but, if they do so, the President hops back in the saddle in no more than 21 days, unless Congress, by a two-thirds vote during that time, finds the President unable to serve. (The only ambiguity is whether the President gets to resume his office sooner if either House of Congress takes a removal vote and it fails.)

How a television show so otherwise impeccable could get this stuff wrong is beyond me. Actually, it’s worse than the Commander-in-Chief gaffe because the commands of the Twenty-Fifth Amendment are more explicit than those of federalism. To get the President’s clemency powers right, you need a lawyer (or a civics book). To get the Twenty-Fifth Amendment right, all you need do is to read it.

Dear Writers and Producers of 24, please hear my plea. Jack Bauer is risking his life to protect and defend the Constitution. Don’t abandon Jack, your country, and your constitution when all of us need you the most.

Peter M. Shane

Jacob E. Davis and Jacob E. Davis II Chair in Law

The Ohio State University

Moritz College of Law