37

The fourth section of the 25th amendment to the US constitution provides for the president to be declared unfit involuntarily. The first of its two paragraphs describes the declaration itself, made by the vice president along with "a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide."

The second paragraph describes a mechanism for the president to resume the "powers and duties" of the office by declaring "that no inability exists." This paragraph also establishes a mechanism for "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" to challenge the president's declaration.

This question is about the difference in the designation of those whose action is required along with the vice president. The first paragraph uses the word "departments," plural, and the second uses "department," singular.

I suppose that the second paragraph was added during the debates on the amendment, and that the use of the singular in the second paragraph is probably an error.

Would courts be likely conclude that the difference is unintentional? If not, does the use of the singular change the meaning of the phrase significantly?

I am especially interested in answers that look at the the legislative history of the amendment to support or refute the hypothesis that the second paragraph was an addition to the original form of the text. As far as I can tell, the relevant congressional documents are not available online for the 1960s.

42

Prologue, a magazine published by the National Archives, had an article about the missing S back in 2012.

In short, the problem was due to a scrivener's error. Congress recognized the error at roughly the same time it submitted the amendment to the states but decided it was too late to fix it:

There was a brief discussion of the possibility of recalling the joint resolution for reconsideration in each chamber, but Congress was operating under severe time pressures as it worked toward adjournment for the summer, and it was decided that the record of congressional debates and actions on successive versions of the joint resolution made the intent so clear that the missing s could not affect interpretation of the text. The proposed amendment was therefore allowed to go to the states in its imperfect form.

Given the basically undisputed nature of the error, I think it would be unlikely that courts would indulge an argument that "department" should be interpreted differently than "departments," at least in any way that would change the outcome of a dispute under the 25th Amendment.

5
  • 4
    Given the current makeup of the Supreme Court, arguments about what Congress anticipated are unlikely to be as persuasive as arguments about what Congress intended.
    – bdb484
    Oct 10 '20 at 16:11
  • 17
    @Barmar: If Trump honestly wanted to take advantage of such a thing as a loophole, he wouldn't have (or at least clearly shouldn't have) appointed originalist justices to the court. In this case, the original intent is clear and well known,so there's approximately zero chance of even a single originalist ("Conservative", if you prefer) justice voting against the clear and well known intent. Oct 10 '20 at 21:02
  • @bdb484 I may be being dense, but what's the difference? As far as I can see, an intention is a desire to influence the outcome of anticipated circumstances. Jurists don't consult the Constitution for predictions, so any consideration of "what Congress anticipated" is surely rooted in determining what circumstances their intentions applied to.
    – Will
    Oct 12 '20 at 11:24
  • 1
    @Will Not dense at all -- it's often a very fine distinction. Whatever a legislature intended is typically going to be within the universe of anticipated outcomes, but not vice versa. This came up recently in Bostock, where the Court decided that discrimination on the basis of sex includes discrimination on the basis of sexual orientation. The Court's language was broad, suggesting an intention to broadly prohibit sexual discrimination -- but few people argue that Congress anticipated that the language could or would be used to prohibit discrimination on the basis of sexual orientation.
    – bdb484
    Oct 12 '20 at 15:03
  • I'd explain how this is relevant in the 25th Amendment context, but the comment that prompted mine has been deleted, so I honestly don't even remember how this came up.
    – bdb484
    Oct 12 '20 at 15:04
-4

At first glance, the Question appears to be rightly dismissed in bdb484's wholly reasonable Answer but law is law and English is English and surely we all remember how often the spirit is not made clear in the letter…

Here in the UK, we have a wholly separate law whose sole purpose is to change the word "the" in a previous law to "a". Please consider the ramifications in language of comparing "the" to "a", as against plural or singular "department(s)", and what knots a skilled lawyer could tie the courts in, for right or wrong.

As it happens our UK case is quite similar revealing, just like this Question, a huge difference in meaning between first and second references to the same thing.

For those who mind, the entire wording of the Public Order (Amendment) Act 1996 is:

An Act to amend the power of arrest of section 5 of the Public Order Act 1986.

[17th October 1996]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1 Power of arrest Section 5(4)(a) of the [1986 c. 64.] Public Order Act 1986 shall be amended by leaving out the word “the” and inserting the word “a”.

2 Citation This Act may be cited as the Public Order (Amendment) Act 1996.

A minxy little 101 words, carefully considered over 10 years, to change the law!

For those who really care, the original Public Order Act 1986 said:

"A constable may arrest a person without warrant if— (a) he engages in offensive conduct which the constable warns him to stop, and…" (blah la la)

Now please again consider both how slight in language and how huge in law is the difference between "the" and "a", and again, compare that to "department(s)"

5
  • 8
    This is an interesting read, but how does it answer the question as-stated?
    – Mast
    Oct 12 '20 at 6:17
  • Uh… Correct me, and I thought the Question was "Is the typo… significant?" Didn't my Answer show how in a somewhat similar situation Westminster, the Mother of Parliaments, came to realise a seemingly insignificant error was actually important enough to demand a new law for its correction? Of course US law isn't bound by British history and still, the substance and process of US law, as well as US English, depend very largely on their British ancestry. Can you really not imagine a skilled lawyer tying US courts in knots, for right or wrong, and that being "significant"? Oct 12 '20 at 23:07
  • It's an illustration of why this type of question is not trivial, but it doesn't do anything to answer the actual question. It's like answering the question, "I have a tree-nut allergy. Is it safe to peanuts?" by saying, "Tree-nut allergies are serious. Mine put me in the hospital once."
    – bdb484
    Oct 13 '20 at 2:26
  • Were this Reddit or some other general discussion board, it would be an interesting and on-point response. It's just not an answer to the question, which is what law.SE is for.
    – bdb484
    Oct 13 '20 at 2:28
  • How could any illustration of why this type of question is not trivial not also address the actual question, Is the typo…significant? Sorry I failed to give due regard to "… the record… made the intent so clear that the missing “S” could not affect interpretation of the text". Still, the tree-nut analogy turns on the missing kernel… not that you were put in hospital, but how and why. Oct 22 '20 at 4:09

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.