Brian Kalt

Const'l law & history of the presidency. I typically tweet as an explainer, not an advocate. DMs open for questions. Professor @MSULaw; loyal @UMich alum/fan

[Brian Kalt @ProfBrianKalt]

@joshchafetz Dunning-Kruger Twitter is the worst Twitter.

[Brian Kalt @ProfBrianKalt]

Misinformation like this is not helpful to anybody, @RBReich. If you are going to throw around the 25th Amendment take a few minutes to study it first. I’d start with this flowchart I tweeted years ago: https://t.co/VwjdtX3Geo

[Brian Kalt @ProfBrianKalt]

I thought folks might find this 25th Amendment § 4 flowchart useful. It's from my book (https://t.co/mW7MD1ss1I)

[Brian Kalt @ProfBrianKalt]

If true, these “operatives” didn’t read the 25th Amendment Section 4 carefully.

If 25A4 is invoked against Trump he would not be “out of office.” He would be sidelined only provisionally. Vance would still be VP (acting president) and unable to nominate a new VP.

1/3

[Robert Reich @RBReich]

I had dinner recently with a group of political operatives who for years have been advising politicians and candidates. During dinner they shared with me their thoughts about how Trump might be removed using the 25th Amendment.

I can’t decide whether to be elated or worried. https://t.co/n8lKI0Hg4I

[Brian Kalt @ProfBrianKalt]

Trump could (and surely would) assert under 25A4 that he’s able to discharge his powers, and unless 2/3 of the House and Senate quickly sided with Vance+Cabinet, Trump would retake power. If he lost that vote he could keep trying. At no point could Vance nominate a new VP.

2/3

[Brian Kalt @ProfBrianKalt]

@James_J_McQuaid I do agree with you that those parts of the statute are problematic

[Brian Kalt @ProfBrianKalt]

@James_J_McQuaid Under the Ashwander principle, the statute would be read as still requiring the vice president to sign onto any effort to invoke section 4. The statute doesn’t preclude such a requirement/reading.

[Brian Kalt @ProfBrianKalt]

@James_J_McQuaid It doesn’t need that phrase. The necessary and proper clause covers governmental powers. It doesn’t cover rights provisions, though, which is why those sections were added to those rights-based amendments.

[Brian Kalt @ProfBrianKalt]

6. As I said earlier, I post as an explainer not an advocate. These mechanics aren't partisan; they apply the same to presidents you like and ones you don't. Many folks don't get that so I often "hide" non-sequitur replies. DMs are always open for sincere questions, though.

5/5

[Brian Kalt @ProfBrianKalt]

I've had a chance to read the bill more carefully. Some critiques:

1. The 25th Amendment allows the creation of a commission like this to replace the Cabinet in the 25A4 process.

2. Less clear: Can Congress give itself a role like the one in the bill? The new commission...

1/5

[Brian Kalt @ProfBrianKalt]

Some comments on this bill:

1. 25th Amendment §4’s default is that the Cabinet (plus the VP) is who declares presidents incapacitated. BUT 25A4 allows swapping the Cabinet with “such other body as Congress may by law provide.” That's what authorizes bills like this one.

1/4

[Brian Kalt @ProfBrianKalt]

5. The bill focuses entirely on the initial declaration of presidential inability, but 25A4 has an elaborate procedure for the restoration of power to the president when he says he's OK. The bill should add provisions on the commission's role in that part of the process.

4/5

[Brian Kalt @ProfBrianKalt]

@James_J_McQuaid If the Cabinet (or other body) and/or VP want to get medical evidence and opinions, they can ask for it. They cannot force the president to be examined, but again, they could draw adverse inferences from that.

[Brian Kalt @ProfBrianKalt]

@James_J_McQuaid As for subjecting presidents to examination, you correctly flagged that as problematic. But the problem is the role §5 of the bill gives *Congress*

A president could refuse to submit to the examination, though the commission/VP/Congress could draw an adverse inference from that

[Brian Kalt @ProfBrianKalt]

@KenGardner11 They had a solution: impeachment (when the unfitness manifests itself in the form of HCMs, which it typically will). But their vision of impeachment doesn't really work anymore, as seen in the last two presidencies. And 25A4 is designed NOT to be an end run around impeachment.

[Brian Kalt @ProfBrianKalt]

Some comments on this bill:

1. 25th Amendment §4’s default is that the Cabinet (plus the VP) is who declares presidents incapacitated. BUT 25A4 allows swapping the Cabinet with “such other body as Congress may by law provide.” That's what authorizes bills like this one.

1/4

[Andrew Solender @AndrewSolender]

NEW: Raskin, w/ 50 House Dem co-sponsors, formally introduces a bill which would create a commission to assess Trump's fitness for office under the 25th Amendment.

Bill text here: https://t.co/UMZqObNaPc

Story TK

[Brian Kalt @ProfBrianKalt]

6. I post as an explainer not an advocate. The nuts and bolts of 25A4 aren't partisan; they apply the same to presidents you like and ones you don't.

Many Twitterers don't get that so I often "hide" non-sequitur replies. My DMs are always open for sincere questions, though.

4/4

[Brian Kalt @ProfBrianKalt]

4. Even with a commission like this, the VP would still need to sign on to any invocation of 25A4. The bill accounts for that, though.

5. An old thread, with more general information on how 25A4 works (with excerpts from my 2019 book on it), is here: https://t.co/0AlziQaMep

3/4

[Brian Kalt @ProfBrianKalt]

President Trump's message to Norwegian PM Støre has my phone ringing again with people asking questions about 25th Amendment Section 4, which transfers power from the president when he is incapacitated.

Seems like a useful time to retweet some of my old content about it...

1/4

[The Atlantic @TheAtlantic]

The Twenty-Fifth Amendment was never meant to be used to remove a terrible president from office—but that’s not what the country has learned from Hollywood, @ProfBrianKalt wrote in 2019. https://t.co/4jJ12gdfCX