The election process of the United States requires Congress to validate the election of the President. The Congress is a bicameral legislature, the Senate being the upper house and the House of Representatives, the lower house.
A raucous mob raided the Capitol building displaying pro-Trump slogans and managed to enter the Senate chamber when the election results were being certified. It shows that the intention was to prevent Congress from certifying the election of Joe Biden.
An impeachment motion was moved in the House of Representatives invoking the 25th Amendment to the Constitution. Though Trump ‘the lame-duck’ President will renounce office within eight days, the move was made to protect the basic American constitutional principles.
The American Constitution comprises seven Articles. Article 1 vests all legislative powers in Congress. The Constitution of the United States was drafted at the 1787 convention and a great compromise was offered to solve the dispute between the smaller and large States over representation in the new federal government. It provided for equal representation from each State in the Senate; each State with two senators and proportional representation based on State’s population in the House of Representatives.
Article 2 vests the executive power in the office of the Presidency of the United States who is elected by an electoral college to serve a four-year term. The 22nd Amendment in 1951 restricted a person from being elected as President more than twice. Article 3 deals with judicial power, Article 4 with relations between the States and the privileges of the States, Article 5 stipulates the procedure for amendment, Article 6 speaks with regard to the supremacy of the Constitution and Article 7 stipulates as to when the Constitution would become operational.
The world was shocked seeing the supporters of the lame-duck President storming the Capitol building to defeat the election certification process. The Capitol building in Washington is the meeting place of US Congress and the seat of the legislative branch of the federal government. It demonstrates the failure of law enforcement agencies in assessing intelligence inputs.
Irrespective as to whether the storming of Capitol building was unplanned or a plot, it portrays lapses in the system. Elections are conducted in November or early December and the power transition takes place on Jan 20, which is called as the date of ‘commencement of proceedings’. Earlier, it was March 4 but the lame-duck period was reduced by fixing the date as January 20. There is a possibility of the lame-duck President exploiting this period. There is a necessity to amend the Constitution in light of the present perilous episode.
Impeachment in the context of the US Constitution is equivalent to an indictment in criminal law. It’s a statement of charges. Article 1 Sec 3 confers power upon the Senate to try all impeachments presided by the Chief Justice. The only penalty possibly imposed is removal from office and disqualifying from holding any federal office in future.
The 25th Amendment to the Constitution set forth succession rules relating to vacancies and disabilities of the President and the Vice-President. Four sections were incorporated. Section 1 stipulates that the Vice President shall become the President in case of removal of President from office or of his death or resignation. The 2nd relates to the power of the President to nominate a Vice President in case of a vacancy, which shall thereafter be confirmed by a majority vote of both houses of Congress.
Section 3 is with regard to the procedure in case of the President voluntarily declaring that he is unable to discharge duties. Section 4 contemplates that whenever the Vice President and a majority of either principal officers of executive department or any such other body as Congress may by law provide, transmit to the President pro-tempore of the Senate (presiding officer) and the Speaker of the House of Representatives that the President is unable to discharge duties, the Vice President shall assume powers.
A reading of sections 1 and 4 shows that if a President is to be removed, a written declaration that the President is unable to discharge powers has to be forwarded to the heads of Senate and House of Representatives by the Vice President or any other such body as Congress may by law provide. Thereafter, when the President transmits his written declaration that no inability exists, and the Vice President disputes the same within four days, Congress shall decide the issue, assembling within 48 hours for that purpose if not in session. If Congress within 21 days determines by a two-thirds vote of both houses that the President is unable to discharge powers, the Vice President shall continue to discharge as acting President otherwise the President shall resume the powers.
It shows that at the first instance if the Vice President and a majority of either the principal officers of the executive departments or such other body as Congress may by law provide, transmit to the Senate and House of Representatives their written declaration that the President is unable to discharge the powers, the Vice President automatically assumes power till the decision making process is completed by Congress and Congress has to take a decision by a two-thirds vote of both Houses.
There is only a marginal difference between Republicans and Democrats in Congress. Unless the Vice President and the majority of the principal officers of the executive department, ie, secretaries, initiate the process, a decision cannot be taken. Obviously, all the secretaries are Trump appointees and even though Vice President Mike Pence differed with Trump, he alone cannot set in the process.
The entire episode reflects that the founding constitutional principles and core democratic values, which constitute the bedrock of the American democracy has started to crumble. A person holding a high constitutional post should strive to protect the Constitution. The President is always accountable to the laws, else he cannot defend a nation.
Abraham Lincoln said that the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution. Hope the American democratic system re-asserts itself and be a role model for the whole world.
(The author is an advocate, High Courts of AP & Telangana)
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