Author Archives: Michael Froomkin

Off (and On)

Posting may be erratic in the next couple of weeks as I shall be enjoying one of the recent fruits of modern medicine. Nothing to do with COVID, I promise, except that the entire building I’ll be residing in has been closed to all visitors including family.

Apparently, during the first week after treatment I will be monitored for various possible and fairly common complications.  And in the second week, I’ll still be monitored even though the chance of complications is then greatly diminished.

“Monitored,” by the way turns, out to be a euphemism for “attached via an unreasonably short cable to an electronic monitor the size of a small TV which is affixed to the wall.”  When the doctor said I would be free to move around,  I’d envisioned something more wireless.

Posted in Personal | 2 Comments

New Glory?

Reports are that the most powerful man in the coming Senate — swing voter Sen. Joe Manchin — says he is open to the idea of statehood for Puerto Rico and DC.

That seems an excellent response to the current political situation.

But it will require a new flag.

Posted in Uncategorized | Leave a comment

Can Acting Secretaries Vote on Presidential Incapacity Under the 25th Amendment?

I think the odds of Vice President Pence invoking the 25th amendment are somewhat lower than the odds of the  Knicks winning the NBA championship this year,1 but the the highly theoretical prospect raises a tidy legal question.

Recall that Section 4 of the 25th Amendment states that,

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.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within fortyeight hours for that purpose if not in session. If the Congress within twentyone days after receipt of the latter written declaration, or, if Congress is not in session, within twentyone days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

No one imagined we’d have so many acting Cabinet Secretaries as we do now.  I think we are up to five out of fifteen at present (counting only true heads of major executive departments and not other ‘Cabinet-level’ appointees), with more perhaps on the way

So the legal mind starts to wonder: Do Acting Secretaries get to vote under the 25th Amendment?  And if not, does the size of the majority required (eight if all count) go down?

The short answer is that it’s most likely that Acting Secretaries get to vote:

The Congressional Research Service did a report, Thomas H. Neale, CRS, Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress (Updated November 5, 2018) which tells you provably much more than you want to know about the history and mechanics of the 25th.  On page 11 it says,

Respecting details of the Cabinet’s participation, the House Judiciary Committee’s 1965 report on the proposed amendment stated that in the event of a vacancy in any of the Cabinet offices, “the acting head would be authorized to participate in a presidential disability determination,” while [John D,] Feerick [a leading scholar of presidential disability and succession] notes that the amendment’s supporters asserted that recess appointees to Cabinet offices would also be eligible to participate in a Section 4 deliberation.

This generally accords with a 1985 memo from the Office of Legal Counsel (the agency in the Justice Department charged with opining on such issues):

We believe that the “principal officers of the executive departments” for the purposes of the Twenty-Fifth Amendment are the heads of the departments listed in 5 U.S.C. § 101, presently the Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secre­tary of Health and Human Services, Secretary of Housing and Urban Develop­ment, Secretary of Transportation, Secretary of Energy, and Secretary of Education. This view is supported by the legislative history of the Amendment. See H.R. Rep. No. 203, 89th Cong., 1st Sess. 3 (1965); 111 Cong. Rec. 7938 (1965) (Rep. Waggoner); id. at 7941 (Rep. Poff); id. at 7944 45 (Rep. Webster); id. at 7952, 7954 (Rep. Gilbert); id. at 3282-83 (Sen. Hart and Sen. Bayh).

At present, this list is identical to the list of statutory Presidential successors under 3 U.S.C. § 19, except that it does not include the Speaker of the House of Representatives or the President pro tempore of the Senate. Furthermore, although the acting heads of departments and recess appointees are not Presi­dential successors, see 3 U.S.C. § 19(e), the legislative history of the Twenty- Fifth .Amendment suggests that, in the event of a vacancy in office or the absence or disability of a department head, the acting department head, at least at the level of undersecretary, principal deputy, or recess appointee might be entitled to participate in determinations of Presidential disability. See H.R. Rep. No. 203 at 3; 111 Cong. Rec. 15380 (1965) (Sen. Kennedy — acting heads); id. at 3284 (Sen. Hart and Sen. Bayh — interim appointees). But see id. at 3284 (Sen. Bayh — acting heads not entitled to participate). As a practical matter, and in order to avoid any doubt regarding the sufficiency of any given declaration, it would be desirable to obtain the assent of a sufficient number of officials to satisfy any definition of the term “principal officers of the executive departments.”

Of course, if the vote were to happen, and the votes of the Acting Secretaries were needed to make a majority, that would be an issue that Trump could take to court. By the time it could work its way to the Supreme Court, the issue would likely be moot.


  1. Note to foreign readers: there is literally no chance of this. []
Posted in Law: Constitutional Law | 3 Comments

Florida Finds Lawsuits It Likes

Florida is notorious for reducing the ability of citizens to complain about governmental actions.  The Florida Administrative Procedure Act deviates in many ways from its federal counterpart and many of those deviations are designed to make it difficult — or impossible — for citizens to object to regulations or other government actions.  Tort law too is heavily constrained, so businesses and rich people and insurance companies don’t need to worry as much about lawsuits either.

Well, Florida has finally found a species of citizen suit it likes.  As part of Governor DeSantis’s opportunistic revival of his anti-BLM-demonstration bill, resurrected in light of the sacking of the US Capitol, the Governor proposes to let anyone complain to hm if a locality has the temerity to cut a police budget:

The 51-page bill would also take an aggressive approach to budgeting of local police departments. Under the initial language, a local government that cuts its police budget could be subject to an appeal by any person. That appeal would be subject to a budget hearing held by the governor’s office, and later a ruling by a separate commission that includes the governor. If that commission decides police cuts were unneeded, they could restore the funding and the decision would be final.

But that’s not all! While it remains hard for citizens to get recompense if shot by police, the governor thinks we should give localities a financial incentive to make the police even more trigger happy at demonstrations:

Beyond budgeting, the proposals would also make it easier to sue government bodies, which generally share wide-ranging lawsuit protections known as sovereign immunity. Those protections would be lifted and governments could be sued under the bill for “damages caused during a riot,” or if a government is found to interfere with “reasonable law enforcement action” during a riot.”

Leaving aside that this is only the latest example of the Florida state government’s callous disregard for the civil rights of Floridians (and especially the minorities disproportionately likely to be victims of police violence), and ignoring the assault on the power of localities to spend their own money and make their own rules, this naked pandering to police and reflexive law-and-order voters flies in the face of evidence that crime is down ….

and police spending is only going up and up….

Posted in Civil Liberties, Florida | Leave a comment

Actions Have Consequences (Eventually)

People are putting names to the faces.

Posted in The Media, The Scandals | 1 Comment

Two Local Congressmen Among Die-Hard Trump/Insurrectionist Enablers

Let it never be forgotten that Carlos Gimenez and Mario Diaz-Balart voted to sustain the objection to accepting and counting Arizona’s electoral votes — well after the mob invited and incited by Trump smashed their way into and looted the Capitol.

By this vote Gimenez and Diaz-Balart signaled their support of Trump, or the mob, or both. In so doing they forever sullied their records as legislators, as patriots, and as decent human beings. In the case off Gimenez, he achieved this distinction in his first week on the job, a very dubious achievement.  Diaz-Ballart has been in Congress on and off since 2002. Time for off again.

Posted in Politics: FL-25/FL-27, Politics: The Party of Sleaze | Leave a comment