by Kurt anthony Krug
Legal News
Michigan State University law professor Brian C. Kalt discusses the weaknesses and loopholes in the U.S. Constitution’s provisions for selecting, replacing, and reprimanding presidents in his latest book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies (Yale University Press $45).
“The theme of Constitutional Cliffhangers is the situations in which the fate of the President of the United States or the presidency itself is in doubt as people argue over the proper interpretation of constitutional provisions. The cliffhanger is the fate of the President of the United States is hanging there in the balance,” explained Kalt.
The 39-year-old Kalt has taught constitutional law, torts, and administrative law at MSU since 2000. He lives in East Lansing with Sara, his wife of 13 years, and two sons, Benjamin, 8, and Jonathan, 5.
“I was approached by Yale University Press about any book ideas I might have,” Kalt said. “I’d written some articles in the past that were sort of the same theme, so the book idea emerged from that. I had these articles with this theme, so I thought they could be adapted into chapters of a book and that I could come up with a few more Constitutional conundrums that most interest me.”
In his book, Kalt – a 1994 University of Michigan alumnus and a 1997 Yale Law School graduate – envisions six scenarios, such as the criminal prosecution of a sitting president, a two-term president’s attempt to stay in power, the ousting of an allegedly disabled president, impeaching a president after leaving office, and a succession struggle between the Speaker of the House and the Secretary of State. These scenarios begin with a fictionalized mini-story that are based on the behaviors demonstrated by Presidents Woodrow Wilson, Calvin Coolidge, Richard M. Nixon, and Ronald Reagan before breaking out into legal and political specifics.
“The six chapters that are individual cliffhangers are all based on things that have not happened yet because if they happened, then we have a precedent and know what the answer is. But in the process of thinking about these things, we certainly have a lot to learn from episodes like that,” he explained.
For instance, Kalt discusses Wilson in his chapter about presidential disability.
Wilson had a debilitating stroke in 1919, which rendered him paralyzed on the left side of his body. For the rest of his term, it was First Lady Edith Wilson who became the de facto president as Wilson avoided Vice President Thomas R. Marshall and other key political figures. The extent of Wilson’s health problems were not made public until his death in 1924.
“For instance, in the presidential disability chapter, there’s an ambiguity; the president could read it and say, ‘They’ve declared me disabled and given power to the vice president, but I disagree,’” said Kalt. “If there’s a disagreement, it has to go to Congress. But the President could read it and say, ‘Well, I disagree. I’m going to assert my power in this way.’ Thus, Congress won’t even get to hear the issue. He would claim he’s president and the vice president would claim he’s president, so we’d have this question again of the procedure of it. The question isn’t whether he’s actually disabled or not, it’s how we go about resolving it, what the process is.”
The author briefly touches upon the recount controversy of the extremely close and controversial 2000 presidential election between George W. Bush and Al Gore.
“I have a couple of chapters where I’m thinking more generally about how these situations arrive, how we might be able to prevent them or repair them, and in the process of thinking about that, I talk about the 2000 election. Most of what I’m talking about is the procedural and structural stuff, not the substantive stuff,” explained Kalt. “I consider the 2000 election a different sort of situation, where the Constitution tells us exactly what we’re supposed to do and the answer – what it is we’re supposed to do – isn’t very satisfying. Some people didn’t like the process of judicial review and maybe having Congress settle. There wasn’t any question about how to do it. To the extent there were constitutional questions there, they were about the laws involved, not about the process.”
According to Kalt, these scenarios – which are products of his “fevered imagination” – carry all sorts of enormous political consequences, should they ever occur, as well as shed light on the delicate and complicated balance between law and politics in American government.
“I have a sense there’s a lot of people out there interested in these sorts of things – there’s a lot of movies and TV shows where these sorts of issues come up. I think they’re pretty compelling to lay people. That said, the subtitle of the book is ‘A Legal Guide for Presidents and their Enemies,’” explained Kalt. “The intention is to actually write something that would be useful should any of these things actually happen as a legal guide to the different legal arguments; that would be useful for lawyers and politicians involved. Short of that, I think it’s just interesting to think about – kinda fun, dramatic possibilities.
“I think it’s mainly of interest to lawyers because these are constitutional law issues, but I know people out there – a more general audience – who think this is fun to think about, too.”
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