Seminar on Original Meaning: Linguistic Analysis of Legal Texts
Class One (Wed, Jan 13)

Discussion Assignment One: Controlling conduct with constitutional text

Section 4 of the 25th  Amendment to the Constitution states in part:

“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

Assume you are legal counsel to Vice President Mike Pence.  The Vice President tells you that he does not believe that President Trump has any significant physical or mental health problems. He asks your opinion whether he should use the procedure set forth in Section 4 to assume the powers and duties of Acting President if:

1. The President tells Pence that he intends to pardon everyone who has been arrested and charged with a crime in connection with the events at the Capitol on January 6.
   
2. The President tells Pence that he intends to launch a pre-emptive nuclear strike on suspected nuclear reactor locations in Iran because he believes such sites are a threat to the survival of the nation of Israel and he doubts that Biden will have the necessary political courage to take such action when he becomes president.
   
3. The President tells Pence that he intends take the advice of his former national security advisor, Michael Flynn, and declare martial law in the states of Wisconsin, Michigan, Pennsylvania, Arizona and Georgia so that voters in those states can cast new votes under  for President, with military supervision making sure there is no fraud.

What advice would you give him as to each of these three possibilities?