countless admirers. at an appropriate time, the traditional memorial service of the court and bar will be held in our court. courtroom. >> watch live coverage for confirmation hearings for amy coney barrett on sunday, live coverage on c-span -- monday, october 12. listen live on the c-span radio app and be sure to visit c-span.org to see a playlist of amy coney barrett's legal views. the discussion on fifth amendment and continuity of government, our guest is professor brian kalt. postrote in the washington on friday morning that the law is clear about handling presidential illness but it can get murky fast. start with what is clear. guest: well, the 25th amendment

gives us very clear procedures for transferring power from the president to the vice president, when the president declares himself unable to discharge his unconscious,he is unable to declare himself unable , then the vice president and the majority of the cabinet can make that declaration and transfer power. things get murkier if the president contests the declaration by the vice thingsnt and cabinet and get really problematic if the president and the vice president are both incapacitated. because they are, 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? 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 don't know exactly how the

president is doing and what the side effects of his medication might be. he could be fine. the problem is that the president can be in pretty bad shape and still not incapacitated enough that the 25th amendment would necessarily kick in. i am not saying we are in that now but there is the potential for that gray area where the president is impaired not incapacitated and that is what worries me most now is the possibility that that could happen. host: how concerned are you about vice president mike pence going to his debate this week? we have heard that they will move forward with the vice presidential debate, him and senator kamala harris. think as long as he is careful and safe and observes the precautions, then he should be able to do that. but, again, there is the potential of a real problem. 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 is to make it clear at any given point who is in charge. getse vice president impaired, certainly 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: the amendment was passed by congress in 1965. it was in the works before the kennedy assassination but then that sort of moved things along, the notion of presidential succession and disability was fresh in anybody's mind. it was ratified by the states in 1967. section one says the vice

president becomes president if the president dies or resigns or is removed. had has never been clear -- never been clear in the constitution before and that narrowed it down. 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 way of knowing how that dispute would be resolved. if the president and vice president were both completely incapacitated, then it would be a clearer case. line ofn, the succession statute has been contested. since 1947 say it's unconstitutional for congressional officials to be in the line of succession. contacts, youhe might have some problems with that. you could probably not think about having them in the line of

concession. are there efforts underway to make those fixes and those additional amendments? guest: neither of those would require amendments. suggesting for a long time, not just me. congress has studied the issue a lot. there hasn't been much impulse to doing anything about it. havingst problem of not any standards in place, that would be adding to the line of succession. when the vice president is incapacitated, to find that in the statute. say who decides. the line of succession, they can just past a new and. the previous one before 1947

just had cabinet. that worked ok. way, wekept it that wouldn't have this constitutional problem. they did that because of the constitutional issue. host: good morning. caller: good morning, professor. i spoke to the person asked me what i wanted to discuss. i wanted to discuss the constitution itself. do is discuss the constitution of the united states, congress and the senate. of power they have in terms impeachment of the president. host: we've got a lot of calls.

what are your specific questions? i want to discuss when the president is impeached. by congress. what does the senate do? ist i want to discuss section 1. it says all powers should be vested in the congress of the united states. of.hall consist 2, says congress is given the power of impeachment. section three, the senate has forpower to try impeachment.

host: take us to your point. we are running out of time. -- the onlye were has is tosenate decide whether to remove the president from office. what i want to tell the american impeachedmr. trump is for life. he cannot be on impeached. we can't have an impeached is going to run for a second term. the constitution makes clear that the houston pages and the senate decides whether to convict. impeachment. a the senate acquitted president trump. none of the consequences apply.

yes, he is impeached. since he wasn't convicted, there are no legal consequences. host: loretta in florida, you're next. caller: thank you, professor. i have a question about the electoral college. i've gone through might constitution and i cannot find where it says how they are picked. i think they were bought and paid for. thank you. host: the electoral college. guest: what the constitution says is it's up to each state. almost every state does it the same way. states can change that. game, they aree

probably not going to. provide state legislatures to vote for president. i think it would be hard for any states to go back to that. it's possible. and bush versus gore, the supreme court suggested the popular vote isn't necessarily so. if enough states do that, we have popular voting for president. it is up to each state. , that'se of your books what we've been focusing on this morning. another book, constitutional cliffhangers, what are some we haven't discussed so far.

that came out in 2012. can you prosecute a sitting president? what if the president tries to pardon himself. what would happen if that was contested? in --is a loop all loophole and term limits. is a chapter on impeaching people after they left office. president tries to pardon himself? at the end of several administrations, that's been a question. it's been asked more loudly this time. the answer is people are very sure he can't do it or they are very sure he can. the answer is no one knows.

there are reasonable arguments on both sides. the answer is can the president pardon himself? he could try. could it work? i hope not. i could imagine a court deciding that either way. host: kim is in arkansas. caller: good morning. a couple of things, c-span talked about steve scully running the next debate. i suggest charles barkley. you guys have put up the biden platform. it's only 108 pages. i wish we could get that up. what biden wants because he won't answer the questions about packing the court. guest, somebody brought up the impeachment.

nancy never brought impeachment before the hothouse. never voted on it before the whole house. i don't see how he was ever actually impeached. i think what you are referring to is the house didn't vote on an investigation leading to impeachment. they did vote on the impeachment and there was a majority that impeached the president. that's why we had the senate vote. host: did you want to follow up on that? caller: ok. i'm not a constitutional scholar. thing, the lady brought up that protesters were debate beating on neighbors doors, telling them what to do.

why aren't we calling this political violence. there are no trump supporters out there burning down stores or buildings. it's been going on the whole year. we have shut down the government. i would ask -- host: you made a couple of points there. we only have a couple of in its left for this discussion about the 25th amendment. we want to use his expertise while we have it. this question from our text service, a possible crisis if the president and vice president become impaired. they travel and appear together more than previous presidents. what could we expect. when does nancy pelosi ascend to the presidency? can you walk through those

issues. guest: as a practical matter with no standards or procedures a place, it would have to be very clear-cut instance of the vice president being completely incapacitated or if he handed power over to the speaker. place, weandards in don't know. nothing wouldhink happen, which is bad. who would be in charge? nothing would happen unless it was a very clear case of incapacity. in one ors try to get two more calls. thanks for waiting. about: i want to talk when the president was not able. constitution,he the senate president would be next.

i think on the election and the debate that's going on, biden shouldn't be up there for all the things he's done. how come no one is questioning what he did? that wasn't fair at all. host: the first part of this question was about line of succession issues. of succession is not spelled out in the constitution. should bengress authorized. in 1947 passed the current law which says the speaker is next in line. the president pro tem is mentioned in the constitution as presiding over the senate.

if the vice president is acting as president, he's not casting the tie-breaking vote. the constitution says nothing about who is acting president at that point. host: this is carolyn in atlanta. good morning. is i reallyuestion biden may not be able to last his term. people say months or maybe a year. harris would be the president. how likely is that if the voters put him in. the voters are voting for a ticket. they are voting for who would step in if something happened to joe biden. i can't speak to the likelihood of him serving out his term. it is happened many times

before. in 19 34,oosevelt --be people should have not was obvious he was not going to live through his term. they didn't think much about who the vice president was. we do a better job of who the running mate is. host: brian kalt is a law professor at michigan state and is the author of the book unable. announcer: c-span's washington journal. every day we are taking your calls live on the air on the news of the day as we discussed policy and choose -- policy issues that impact the. tuesday morning, jessica taylor discusses key senate races ahead of november's election. then author and vice presidential scholar joel goldstein previews wednesday

night's vice presidential debate. watch washington journal live at 7:00 eastern tuesday morning. be sure to join the discussion with your phone calls, facebook comments, text messages and tweets. >> i honestly will tell you, i don't think when the dust settles in this election it is going to be whether america becomes more republican or more democrat. whether we are more liberal or more conservative. more red or blue. i think the choice in this election is whether america remains america. >> as joe biden has said from the moment he entered this race, it is about the soul of our nation. who we are. what we stand for. and maybe, most importantly, who we want to be. announcer: watch the vice presidential debates between vice president mike thence and senator kamala harris, live

wednesday at 9:00 p.m. eastern from the university of utah in south lake city. watch the debates live on c-span, listen on the free span radio app. there's also a link to each debate question and answer. see social media feeds on debate happenings and reaction, and watch archival residential debate video from the c-span video library. announcer: earlier today, dr. sean conley, president trump's physician, brief reporters on the president's condition. this took place at about 3:00 p.m. eastern, about three hours before the president left walter reed medical center for the white house.