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Lame Duck — A Peril?

The United States election process requires the congress to validate the election of the President. 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 at the time when the election results were being certified. Obviously it shows that the intention was to prevent the congress from certifying election of Joe Biden. An impeachment motion was moved in the House of Representatives invoking 25th amendment of the constitution. Mr. Trump ‘the lame duck’ President shall renounce the office within eight days. Still 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 United States was drafted at 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 upper house that is the senate; each state two senators  and proportional representation based on state’s population in the lower house called 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 the year 1951 restricted a person from being elected as President more than twice. Article – 3 speaks with regard to judicial power, Article – 4 deals 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 witnessing the supporters of the lame duck President storming into the US capitol building to defeat the certification process of election by the congress. Some have described it as a darkest day since 9/11. The capitol building in Washington is the meeting place of the United States congress and the seat of the legislative branch of the federal government. It demonstrates the failure of law enforcement agencies in assessing the intelligence inputs. Capitol police required assistance from the other agencies to control the insurgence. Irrespective as to whether the storming capitol building is unplanned or a plot, it portrays lapses in the system. The elections are conducted in the month of November or early December and the power transition takes place on 20th January which is called as the date of ‘commencement of proceedings’. Earlier it was fourth March but the lame duck period was reduced by fixing the date as 20th January. There is a possibility of lame duck President exploiting the lame duck period. There is a necessity to amend the constitution in the light of the present perilous episode.

The House of Representatives invoked the impeachment process.  Impeachment in the context of 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 may be imposed is removal from office and disqualifying from holding any federal office in future. The 25th amendment to the constitution of United States 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 section relates to the power of the President to nominate a Vice President in case of a vacancy which shall thereafter confirmed by a majority vote of both houses of congress. The 3rd section speaks with regard to the procedure in case of the President voluntarily declaring that he is unable to discharge duties and section four 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 as acting president.

A reading of section one and four 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 head’s of senate and house of representatives by the Vice President or any other such body as congress may by law provide and the Vice President shall immediately assume the powers. Thereafter when the President transmits to the said senate and the House of Representatives his written declaration that no inability exists, and the Vice President disputes the same within four days, the congress shall decide the issue, assembling within 48 hours for that purpose if not in session. If the congress within 21 days determines by 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 assume powers till the decision making process is completed by the congress and the congress has to take a decision by two thirds vote of both houses. There is only a marginal difference between republicans and democrats in the congress. Unless the Vice President and the majority of the principal officers of the executive department i.e., secretaries initiate the process, a decision cannot be taken. Obviously all the secretaries are the Trump appointees and even though the Vice President Mr.Mike Pence differed with President Trump, he alone cannot set in the process.

The entire episode reflects that the founding constitution principles and core democratic values which constitute the rock bed of the American democracy started to crumble. The entire world is shocked. A person holding high constitutional post should strive to protect the constitution. A creature of constitution cannot destroy the same. The President is always accountable to the laws, or 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 to the whole world.

By Chittarvu Raghu, Advocate,
High Court’s of A.P. & T.S.
[email protected]

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