May 15

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West Wing Wednesday: Top 5 constitutional mistakes



Posted 11 months, 9 days ago.

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whcounselWelcome back for Constitution Daily’s West Wing Wednesday, where we walk and talk about everyone’s favorite now-on-Netflix political drama and the top constitutional lessons, mistakes, and moments from the show.

The show was well known for its intellectual bent, but it didn’t get everything right. Here are a few constitutional mistakes you can point out to your friends—for bonus points, try to display your know-how with the smug charm of Sam Seaborn.

1. Cabinet meetings aren’t required

President Jed Bartlet grumbles, “I find these Cabinet meetings to be a fairly mind-numbing experience, but Leo assures me they are constitutionally required” (“Enemies,” Season 1, Episode 8).

In reality, the Constitution doesn’t even mention the president’s Cabinet. It says in Article II, Section 2 that the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”

This phrase was the foundation for the Cabinet, but there’s certainly nothing about a required meeting schedule. In fact, the Cabinet was primarily set in motion by the precedent of President George Washington, who selected four department heads when he took office.

2. The Supreme Court doesn’t love only prime-numbered amendments

White House counsel Oliver Babish comments, “My staff’s work on the analysis of HR 437 ignored the Fourth Amendment implications and instead became fascinated with the Third, Seventh, and 11th. You gotta be a prime number to get the attention of the U.S. Supreme Court” (“Bad Moon Rising,” Season 2, Episode 19).

Some prime-numbered amendments do indeed get the attention of the Supreme Court—particularly the First Amendment. But an even-numbered amendment is right up there with the First as the amendment most frequently cited by the court: the 14th Amendment, which deals with equal protection of the laws and due process of law.

Also, HR 437 must be a very interesting bill if it has Third Amendment implications, since it is among the least cited by the Supreme Court. Though it did mention the amendment in the ruling for Griswold v. Connecticut, the court has never ruled directly on the meaning of the Third Amendment.

3. Don’t blame inauguration on Jefferson

In the series finale (“Tomorrow,” Season 7, Episode 22), this happens:

westwingfranklin

Actually, Jefferson, Adams, and Franklin were dead when inauguration was slated for January. The original Constitution scheduled the  inauguration for March. And by the way,  Jefferson and Adams were not drafters of the Constitution—they were both serving as ambassadors abroad during the Constitutional Convention. It was in 1933 with the ratification of the 20th Amendment that inauguration was moved to January, to shorten the “lame duck” term for the president and Congress.

4. You can’t be appointed to a House seat

In the show, the White House staff encounters Congressman Willis, who was supposedly appointed to fill his deceased wife’s seat in the House of Representatives (“Mr. Willis of Ohio,” Season 1, Episode 6).

In reality, Article I, Section 2 of the Constitution requires that a vacant House seat be filled by a special election, not an appointment: “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”

Because elections are expensive to run and House terms are only two years, some governors have actually declined to call for a special election to fill a seat.

However, a vacant Senate seat can be filled by appointment. The 17th Amendment—which changed the Constitution so that senators would be directly elected by the people, not state legislatures—provides that a state governor may appoint a replacement to serve until a special election is called (Senate terms last longer than the House, for six years) or until the next general election.

It’s not unheard of, though, for a widow or widower to assume their spouse’s seat through election or appointment. Throughout American history, nearly 20 widows have filled the Senate or House seat left vacant by a deceased husband.

5. A presidential memo isn’t the only 25th Amendment option

When President Bartlet goes under general anesthesia to treat an injury from a shooting, confusion ensues about who is commander in chief in his stead. Several characters mention the 25th Amendment, saying it requires the president to write a memo to temporarily transfer power to the vice president. Staff member Toby says incredulously, “He’s hemorrhaging and he’s supposed to draft a memo?”

Section 3 of the 25th Amendment does provide that the president may offer a written declaration to temporarily defer power to the vice president. (We’ll revisit Bartlet’s use of that option another West Wing Wednesday…) But Section 4 provides another option: The vice president and “a majority of either the principal officers of the executive departments” (generally understood to be the Cabinet) can declare the president incapacitated. The president could then resume power by submitting a written declaration stating he was no longer incapacitated.

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