Just when we thought things could not get any more ridiculous, along comes Eric Posner.
In a piece that ran in the Washington Post and Chicago Tribune, Eric Posner, who teaches at the University of Chicago Law School and wrote the book “The Twilight of International Human Rights Law,” argues that President Trump’s eight months in office “exposed a defect in our constitutional system.”
The defect is this: Presidents can be removed if convicted of high crimes and misdemeanors. They can be removed under the 25th Amendment if they are incapacitated by physical or mental illness.
“But there is no obvious solution for a president who has not committed a crime or been disabled by illness but has lost the confidence of the public because of a failure of temperament, ideology or ability. “
Posner proposed expanding the 25th Amendment to address this by creating a Presidential Oversight Council that could recommend removal of the president on political rather than medical grounds. “When both the president’s party and the opposing party lose confidence in the president’s ability to govern, the council would stand ready to evaluate him and make a recommendation to Congress. Congress would be required to vote on its recommendation.”
He said the authors of the 25h Amendment left open this very possibility when they used the language “unable to discharge the duties of his office.” Since it does not specify this refers to mental or physical factors, Posner reasons, presidents could be removed even if their incompetence “results from other reasons – including a failure of temperament, ideology or ability.”
And since the amendment authorizes Congress to create a body to report on the president’s ability to serve, and since it states explicitly the body must include the vice president but does not say it must include medical professionals, it could be formed with senior elected officials of both parties.
All of this – proposing to remove presidents because of a “failure of temperament, ideology or ability” or allowing Congress to end a presidency if both parties “lose confidence in the president’s ability to govern” – is OK, Posner said, because it would “give notice to Trump and his aides that outrageous behavior will no longer be tolerated and is not shielded by the Constitution.”
There is already a solution for presidents who have not committed crimes or been disabled by illness but have lost the confidence of the public – an election. Never answered is whether the president could remove Congress if Congress were found incompetent – which, with its 8 percent approval rating, might not be difficult.
The Constitution did not and never will endorse this Presidential Oversight Council, in part because it laid out terms of office for the president, a system of checks and balances that deliberately does not require him to maintain good relations with Congress and a system for legitimate removal from office.
Posner tells us Congress would have to approve the proposal, as if that makes it better. Imagine if presidents had to maintain the support of Congress to stay in office. How long after the 2010 midterms would President Obama have survived? He had no support in Congress for the last six years of his presidency. By the end, his own party had grown weary from the lack of progress on many issues.
Posner would go a step further and make this a permanent body that meets regularly. This way “oversight of the president would be normalized and wouldn’t require the sort of crisis that motivates impeachment decisions.” We could just casually get tired of a president and get rid of him like an uncomfortable pair of shoes.
The 25th Amendment, created in panic after President Woodrow Wilson was debilitated in office by a stroke, may not specifically state who should belong to the body that studies the president’s fitness for office. But its clear intent is not what Posner calls for – removal of a duly elected president over concerns by members of Congress or others about “the president’s character.”
Fortunately, we already have judges in place to determine whether presidents have sufficient character to serve. There are about 200 million of them. They’re known as voters.