i know how to do it, but i do want to thank all of you for a very stimulating discussion of the upcoming term, and for a very interesting discussion also about the potential impact of a justice barrett. thanks so much to all of you for watching, and we hope to see you soon at another federalist society event. check out our website for our upcoming events. with that, thanks, everybody, and have a good afternoon. watch live coverage of the senate confirmation hearings for judge amy coney barrett starting monday, october 12 with opening statements by committee members and judge merrick. live coverage on c-span and c-span.org.

listen live on the c-span radio viewnd visit c-span.org to a playlist of amy coney barrett's legal views. host: a discussion on the continuity of government. our guest is a lot professor at michigan state. you wrote in the washington post friday morning that the law is clear about handling presidential illness, but it can get murky fast. start with what is clear. amendmentl, the 25th gives us clear procedures for transferring power to the president-- from the to the vice president when he is unable to dispense duties or he is unconscious. the vice president and the majority of the cabinet can make that transfer of power. things get murky if the president challenges the

declaration and get really problematic if the president and vice president are both incapacitated because then we have a lot of gaps in our law. host: as you have watched this unfold since friday what concerns you the most right now? well, i think, again, there is a murky area where the president might think that he is able and he is not. it is hard to know. we do not know exactly how the president is doing, what the side effect of his medication might be. he could be fine, but the problem is the president can be in pretty bad shape and still enough thattated the 25th amendment would necessarily kick in. i am not saying we are in that now, but is the potential for gray area where he is impaired panetta capacity did and that is what worries me most -- impaired

but not incapacitated and that is what worries me most. host: are you worried about vice president mike pence going to his debate? they are going to move forward with the vice presidential debate, he and senator kamala harris. guest: i think as long as he is careful and safe and observes precautions then he should be able to do that. but again, there is the potential of a real problem because the 25th amendment only provides for transferring power to the vice president, not down further in the line of succession. it could get very problematic. the point of succession and continuity of government system is to make it clear at any given point who is in charge. if the vice president gets impaired, that certainty, that clarity, could vanish in an instant and we could have a real crisis. host: when was the 25th amendment added to the

constitution and how may times has it been invoked? guest: so, the amendment was passed by congress in 1965. it was in the works before the kennedy assassination, but that sort of moved things along. the notion of presidential succession and disability was fresh and everyone's mind. it was ratified by the state by the vicesection 1 says president becomes president if the president dies, resigns, or is removed. that has never been clear before. was used whent gerald ford succeeded nixon. section two was used twice when spiro agnew resigned and gerald ford became president and when ford became president and needed

a new vice president. section three for presidential disability has been used three times. once by president reagan in 1985, when he had surgery on his: and was under anesthesia for eight hours. and then twice by george dollar -- george w. bush when he had colonoscopies, he transferred power for a couple of hours to dick cheney. section four, when people talk about invoking the 25th amendment, that is the only part that has never been invoked. the vice president and cabinet have never declared a president unable except on tv and movies a lot. host: talking with brian kalt, law professor and michigan state , taking your phone calls and questions. phone lines split up this way. in the eastern or central time zones, (202) 748-8000. in the mountain or pacific time zones, (202) 748-8001.

we should note that brian kalt's book, unable, the law of politics and limits of section four of the 25th amendment, a good time to ask your questions about the 25th amendment. charles is up first out of columbia, south carolina. good morning. caller: i have two major concerns about presidential illness. when you look at joe biden, he looks he has -- he looks like he has slowed down so much for with five years ago cognitive decline. i am concerned that he does not make it through his first term if he is elected and we have kamala harris. i am very concerned about that. we are basically electing kamala harris. the second is what happens if , if he has a serious ,llness that incapacitates him at what point does kamala harris stepped in to remove joe biden

from president? -- step in to remove joe biden from president? there is a major concern we have that they will not be able to move him out of office if he is incapacitated. he does not look like he would finish his first term. raise an important distention that is important to make. in the 25th amendment, section four, when the vice president and the majority of the cabinet declare the president unable, the president is not removed from office. this is a temporary and provisional transfer of power. there is an additional process where the president can contest that. in that instance, he would take power back unless the vice president and the cabinet and two thirds of the house and senate all agreed that he is unable. even then, he would not be removed from office. he could keep trying again to return. the issue of cognitive decline is one i cover in the book.

if the president has a condition he iss degenerative where not going to get better, ideally what would happen is, first and foremost, the president would recognize that and either invoke section three himself or resign. if the president does not do that, that is what section four is therefore. the bar is high. we are talking about, not impairment, but incapacity. if the president has lost a step over the years and he forgets things here and there, that is not what section four is about. is about when there is no one in charge. is when the person's charge not as vigorous as we might like. there is a gap there. i cannot comment on joe biden's condition. i am not an expert on that. i do know that the system we have in place sets the bar very high.

host: what is the definition of unable to discharge duties of his office? guest: like many things in the constitution, the 25th amendment uses the term unable but does not define it. instead of defining it, it tells us who decides. by structuring the process, saying who decides and how many of them need to agree, it flushes out the standard that way. someone might say unable means that they cannot do the job. if i were president, i would be unable because i am not qualified to be president. i would not be able to do the job. that is not what it means. we know this because the process says he isresident ok, then he probably retains his power. again, it is only if his own people, the vice president and the cabinet and two thirds in the house and senate, that means

substantial numbers and members of his own party, only if all of those people think he should not be there would it be invoked. what that does is raises the bar very high. more votes than you need for impeachment. impeachment, you did not need the vice president or cabinet onboard, you need a simple majority in the house, not two thirds. run is not an end alternative way of getting the president out of office if we don't like how he is doing. it is really just about inability to the level of total incapacitation. unable could mean a lot of things. given who the decision-makers are, it means capacity. -- incapacitated. host: connie, good morning. caller: good morning, c-span. for bid if is, god one of the presidential beforetes should die

november 3, what would they do then? would the vice president on the ticket automatically be the one chosen? i just don't know, what would they do? is -- it is too late now to change the ballots. the balance would not be changed. people would still vote for the ticket that is printed on the ballot. but both political parties, the have rules inc place where if a nominee, presidential or vice presidential, dies or steps down, the party names the replacement. functionally, what would happen is people would vote for the missing candidate and then the parties choice to replace that who the electors and electoral college vote for on december 14 when it becomes formal. the party would cordon eight with the electors -- coordinate

with the electors. there are some states where they are bound to vote for whoever wins. we have a congressional president from 1872 where horace greeley died, where congress said electors cannot vote for somebody who is already dead. i would expect in that instance that the states that bind their wontors to vote for who would go with who their parties named as a replacement. this happened in 1912, the vice president died a few days before the election. vice president sherman died. the republican party, it did not manage -- matter much because they only wanon eight electoral votes. host: to gary out of newport kentucky. said people always

don't take the time to look at or consider the vice president. startlways said from the i'm sure vice president pence could walk right into this position if he had to. you have to look at the qualifications of the vice president. guest: that's absolutely true. through most of our history, the vice president was an afterthought. we have had very -- several incidents where the vice president became president. if you lose the president, we have situations like when lincoln was shot and a member of the other party becomes

president, facing two thirds majority of the opposition party in the house and senate. recently, we've done a good job of worrying less about balancing the ticket. ultimately, it's up to the voters. the voters are voting for a ticket. they are voting for the president and the understudy. the voters need to take that seriously and should always for both sides. host: i want to come back to section 4 of the 25th amendment. or other body is congress may by law provide

take us to principle officers and who that constitutes. guest: there is some confusion about this. the text is clear. the 15ey mean there is core members of the cabinet. this does not include cabinet level people like the chief of staff or the trade representative. this is secretary of state, attorney general, the people in the line of succession. is used in article 2. that's where they talk about the cabinet. title v section 101 defines what the executive departments are. there are 15 of them. the most recent is homeland security. what if they are acting

secretary? ise people think the cabinet full of acting secretaries. right now, there is just one. there are some questions about his status as acting secretary. the legislative history if active secretaries participate. the evidence says they would participate. principal officers, who's in charge of homeland security? chad wolf's. leaving aside the issue if he is the acting secretary. even if acting secretaries don't participate, they would be removed from the denominator. you just need a majority of who is left. need a majority that are left. there is other body. congress is never done that. that would have to be done through legislation. fly could not just on the

say forget the cabinet, let's have this doctor. they would have to pass a law and the president could veto it. that's very unlikely. host: we are talking to brian kalt of michigan state university. (202) 748-8000 if you have questions and you are in the eastern or central time zones. (202) 748-8001 if you're in the mountain or pacific time zones. this is howard in north carolina. in morning. caller: top of the morning to you. i have a question. you've got people calling and talking about joe biden and he might not be in his right mind. they need to get off that. we are going into an election right now. they are still trying to throw stones it biden. we are talking about trump and pence.

administration doesn't know who's going to be in charge right now today if something happens to trump. what i want to know is this. whateverou think trump let you guys know that he is incapacitated, he's no longer with the world at the moment because of the drugs? you take those drugs, you can't be coherent or in your right mind? why isn't anybody going to invoke the 25th amendment and let pence handle the job? it is true that a lot is left up to the president. normally, we would say the bar is lower if the president declares himself unable. there is a natural reluctance by

president to do that. when reagan was shot, he should have invoked section 3. he was in surgery for hours. he was out of it for days after that. to projectneed strength and vigor and control. presidentsnd to see lightly admit that they are not up to it. the question is at what point does the vice president step in? hope there we would is communication between the , thedent, the staff doctors, the family and the vice president and the cabinet. point, they might want to step in. is political. it's not a medical question. in,he vice president steps ,oes over the president's head

the president might not be happy about that. the deck is stacked in his favor. fine, he takes the question to congress. politically, it would be very difficult. the vice president and cabinet will be very reluctant in any situation, especially in the middle of election, reluctant to do that unless the president is under reasonable definition unable to do his job and they are sure that if he contests it it wouldn't be a huge divisive disastrous fight. it would be something relatively smooth. better and when you are better, we can say you are able to come back.

it's informal channels. the system is not set up to make this transfer of power lightly. we haveckly, the reason a 25th amendment is we have situations like president garfield who was shot and incapacitated. president wilson had a stroke and was incapacitated. no one was willing to step forward because they weren't takeif the president would his power back if he recovered. the point of the 25th amendment was to clarify that and make it easier and more likely that the vice president could step in. when you have a situation that's , it's not going to happen. they did not invoke section 4 when reagan was shot and they probably should have. host: this is michael in portland. what happens if the president becomes incommunicado.

suppose the president for whatever reason cannot be contacted and we cannot determine whether he or she will be contactable? guest: i have a section on that in the book. the pleasanton's plane being missing. that's an issue. you don't want to invoke section four lightly. if the president is incommunicado and you need the president, there are certain things he's the only one who can do them. as a practical matter, they would be reluctant to do that until they are sure the president is incommunicado and give them some time. crisis and it was a problem that there was no president there, then they would

do it. if there is nothing in particular that is critical happening right then, the vice president can standby. whoever wasive looking more time. host: we have about 20 minutes left with brian kalt from michigan state university. we are talking about the 25th amendment and the continuity of government. this is bill in maryland. good morning. caller: can you hear me? mention, ied to heard earlier where when the 25th amend it put into effect when reagan and bush were in office, he said when bush

underwent the colonoscopy, dick cheney was made president. quayle.it was dan am i correct about that? guest: this was george w. bush? presidenty was acting on two occasions for about two hours each. caller: dan quayle was also acting president? guest: george h to be bush did have some health issues. at onea heart condition point. transfernt, did he power to dan quayle. host: saint augustine florida is next. good morning. this is a hypothetical, let's assume that the vice president has to assume the role as acting president due to the incapacitation of the existing president.

this is kind of far out. let's assume something immediately would happen to the vice president as well. , wouldhere is no vacancy we then say that the speaker of the house would fill that role? guest: yes. there would -- the vice president would still be acting as president. he would not be able to appoint a new vice president. next in line is the speaker of the house. before there was the 25th amendment, transferring power further down the line has no standards. if pence and pelosi this agreed, we have no w >> officials are about to give an update on the president's