Faculty Blog, Uncategorized

Faculty Blog: The Most Important Qualification for a Post in President Trump’s Cabinet

By: Lawrence M. Friedman and David M. Siegel

As the confirmation process for President Trump’s cabinet comes to a close, it’s worth noting that Senators have failed to question any of the nominees about their understanding of their constitutional responsibilities under the Twenty-Fifth Amendment, much less whether any would be willing to fulfill those responsibilities. That Amendment provides for succession when the President “is unable to discharge the powers and duties of his office”—either when the president declares this inability or when a majority of “principal officers of the executive departments,” together with the vice president, make that determination. It is this latter situation that we should hope the members of President Trump’s cabinet fully appreciate.

This President has insisted, throughout the campaign and into his first weeks in office, on the truth of facts at odds with objective reality—sometimes harmless, and at other times in ways that have antagonized America’s longstanding allies. To their credit, some cabinet nominees have acknowledged, tacitly, their divergence from the Chief Executive on many of these points. But that acknowledgment is just the start: the Constitution charges the members of the cabinet with determining whether the President’s inability to accurately perceive and respond to objective reality poses a threat to our national security. Should they make such a determination, they, together with the Vice President, have a duty to act on that information and trigger the succession provisions of the Twenty-Fifth Amendment.

The Twenty-Fifth is among the youngest of our constitutional amendments. Its framers designed it to address the “Kennedy problem”—what might have happened had President Kennedy survived, but in some incapacitated state. A more likely scenario is a president afflicted with a neurodegenerative illness, or a crippling personality disorder, that prevents him or her from recognizing an inability to perform the functions of office. If the vice president and a majority of the “principal officers” of the executive departments—which has been interpreted to include the thirteen secretaries in the line of succession—confer and agree on the existence of this disability, they must transmit this conclusion to Congress. Presidential authority is immediately transferred to the vice president, unless the president contests the original conclusion, which sends the issue to Congress for resolution.

Three psychiatrists wrote to President Obama in November that President Trump’s behavior—his “grandiosity, impulsivity, hypersensitivity to slights or criticism, and an apparent inability to distinguish between fantasy and reality”—warranted “a full medical and neuropsychiatric evaluation by an impartial team of investigators.” No psychiatrist could say—or do—more consistent with their professional ethics.

But cabinet secretaries are bound by a different obligation. Upon assuming his or her official duties, each takes an oath of fealty not to the president but to the Constitution itself; each makes a solemn promise to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”

In light of the Twenty-Fifth Amendment, a principal qualification for cabinet officers should be a readiness to fulfill the responsibilities that amendment spells out. Such obligations are hardly unusual in American law. Every state mandates that teachers, counselors, social workers, and medical professionals report suspicions of child abuse or neglect, and failure to do so may be subject to civil and criminal penalties. We prefer mandated reporting for the sake of our childrens’ well-being. When it comes to presidential fitness, particularly of the oldest person to become president—and one who has demonstrated a preference for “alternative facts”—we ought to demand no less of the most senior executive branch officials—for the nation’s well-being and, perhaps, the world’s.

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