Magneto’s Scheme in the X-Men Movie

This is a question we got a while back from Christopher, who wondered about Magneto’s evil plot in the 2000 X-Men movie.  In the movie, Magneto devises a plan to win respect for mutants by turning the world’s leaders into mutants, starting with a particularly anti-mutant U.S. Senator, which would force them to see things from the mutant perspective.  But what if the plan backfired, and anti-mutant sentiment led to an effort to remove the leaders from office?  In particular Christopher wanted to know about the President.*  There are four ways we can think of for getting rid of the President: two might actually work, one is tenuous for legal reasons, and one is tenuous for practical reasons.

* If you’re wondering, Senator Kelly could have been removed by expulsion by the Senate itself, impeachment, or constitutional amendment (more on those last two later).  The Senate, like the House, has the power to decide whether its members meet the constitutional requirements for election but may not do so in order to discipline its members.  Powell v. McCormack, 395 U.S. 486 (1969).

I. Impeachment

Strictly speaking, impeachment refers to charging an official with misconduct, not the resulting trial or getting kicked out of office.  It’s basically an indictment.  At the federal level, the President can be removed from office on impeachment for and  conviction of treason, bribery, or other high crimes and misdemeanors.  U.S. Const. art. II, § 4.  Getting the ball rolling requires a simple majority in the House, but conviction requires a two-thirds vote in the Senate.  The conviction cannot be reviewed by the federal courts.  Nixon v. United States, 506 U.S. 224 (1993) (NB: this was a case about a federal judge named Nixon, not former President Nixon, who was almost-but-not-quite impeached before he resigned).  Nor can the new President (i.e. the former Vice President) use the pardon power  to reinstate the ex-President.  U.S. Const. art. II, § 2, cl. 1 (impeachment is expressly excluded from the pardon power).

On the one hand, it’s unlikely that being a mutant would qualify as a “high crime or misdemeanor.”  The phrase is misleading to modern ears, and it encompasses more than just criminal acts and includes maladministration and subversion of the Constitution.  But even these broader terms require some kind of overt act or omission; simply existing as a mutant wouldn’t seem to qualify.  On the other hand, no one is perfect, and some trumped-up charge could probably be dug up.  Besides, the impeachment and conviction aren’t reviewable by the courts: once you’re out, you’re out.

The major downside of the impeachment route is that it’s still a trial, and since the Chief Justice of the Supreme Court would preside over the case, it’s unlikely that Congress could make a complete mockery of the proceedings.  The President would have the opportunity to present evidence and call witnesses, which buys a lot of time for building public support against removal.

II. The 25th Amendment

The 25th Amendment addresses the problem of Presidential succession.  This includes not only what to do if the President dies, resigns, or is removed from office (the Vice President takes over) but also what to do if the President is nonfatally disabled (the Vice President takes over as acting President).  This second option can be voluntary (e.g. for a planned surgery during which the President will be incapacitated) or involuntary (e.g. an unplanned incapacitation).  It’s the involuntary option that interests us because it can effectively be used to stage a coup, albeit one that needs considerable Congressional support.

The way the process works is that the Vice President and the majority of the Cabinet transmit a written declaration of the President’s disability to the President pro tempore of the Senate and the Speaker of the House.  This makes the Vice President the acting President.  The President can then challenge this declaration.  Ultimately, Congress decides the issue: if two-thirds of both houses vote that the President is indeed disabled, then the VP remains acting President.

The advantages here are that there’s no need for trumped-up charges, the executive branch can start the process, there’s no intervention by the judicial branch, the VP immediately assumes power, and Congress only has 21 days to decide the issue, so there’s a limit on how much time the President has to gather public support.  The downside is that it requires a majority of the Cabinet, who presumably are fans of the President, and two-thirds of both houses, which is a higher bar than impeachment.  And it’s probably still pretty difficult to sell mutant status as such a disability that the President couldn’t discharge his or her duties, although some mutations come close, particularly dangerous, uncontrolled ones.

III. Adding a Qualification for Office

Now we come to the legally tenuous approach.  Congress could try to force a new qualification for office on the President, but we don’t think it would work without a constitutional amendment.  The Constitution specifically lists the qualifications to be President and doesn’t provide for adding any new ones.  It’s also not one of Congress’s specifically enumerated powers.  The houses of Congress are explicitly empowered to judge the qualifications of their own members, which suggests they are not empowered to do so for the Presidency.  Finally, Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) suggest that the qualifications to be President, like those for federal legislators, are constitutionally fixed and cannot be altered by Congress or the states (except by amendment).

Besides, the President would assuredly veto the bill, and overriding it would require a two-thirds vote in both houses.  It would probably be easier to go the impeachment route.

IV. Constitutional Amendment

And here we come to the wildly impractical but guaranteed effective nuclear option.  There’s no reason the President couldn’t be removed by amendment, either explicitly (“Amendment 28: John Smith, currently President of the United States, is hereby removed from office.”) or implicitly by barring mutants from holding office, notwithstanding all that stuff about equal protection and due process.

The downside is that it would be completely impractical unless virtually the entire country were rabidly anti-mutant.  The upside is that an amendment could affect all mutant office-holders at once, which the other three methods could not.

V. Conclusion

Magneto’s plan, though criminal and insane, would probably not have backfired.  Removing mutant politicians from office would have been difficult, fairly slow, and politically divisive at best and effectively impossible at worst.  It’s more likely that the mutant politicians, if they refused to resign, would have stuck around at least to the end of their terms.

24 Responses to Magneto’s Scheme in the X-Men Movie

  1. Interesting. I’ve always wondered how much of the population in the marvel universe is anti mutant.

    • I’ve long held the suspicion that the answer to that will always be “as large or as small a percentage as can be used to rationalize Doing Bad Things to Mutants for the Purpose of the Plot”.

  2. Are there any limits placed on what qualifications a president must have? Could the government conceivably pass an amendment saying that the President must be a man, over six feet tall, white and non-Muslim or would these all be considered discriminatory in and of themselves? I know the qualifications for the job specify age and place of birth but I suppose the case was made that each of these specifications was justified. Besides it is normal to discriminate on the basis of age.

    • As far as I know there’s no limitation on what an amendment can do. Clearly amendments can undo fundamental parts of both the original Constitution (e.g. the 17th Amendment allowing direct election of senators) and earlier amendments (e.g. the 21st Amendment repealing the 18th). It could be argued that an amendment like the one you describe would be qualitatively different in that it restricts rights rather than expanding them (which amendments usually do), but the 18th Amendment was pretty clearly a restriction on individual rights, albeit of an arguably less fundamental kind than who can be elected to office.

  3. Thanks for your reply to my question! There was one other issue I mentioned in my e-mail that I was hoping to hear your thoughts on. Article II Sec. 1 of the Constitution says, at least implicitly, that one must be a “person” to be eligible for the presidency (or at least it says “No person” who doesn’t meet the qualifications can do it). As far as I can tell, there’s nothing in the legal definition of “person” that requires one to be human. But if Congress passed a law defining a “person” as a human (or at least as someone without the mutant X-gene), would that be a way of disqualifying mutants from the Presidency? I know you said that Congress isn’t empowered to add qualifications, but this might be a way to make an end run around that; the language of the article would be unchanged, just saying “person,” but the definition of that term would’ve been altered. Although I doubt the Supreme Court would look kindly on a sneaky tactic like that.

    Even if such a law could be passed, though, I’m not sure it would apply to the sitting President, since they would’ve still been qualified at the time of their election. It would just prevent them from running again.

    • I’d love to know the answer to that question. But I don’t think Congress could make it work. The President would veto the bill.

    • @christopherlbennet I do not think that a law could be passed to define a term within the Constitution. In Marbury v. Madison, the court stated that it was the duty of the Judicial Department “to say what the law is”, and in so doing they took responsibility and authority to define ambiguous in laws generally and in the Constitution explicitly.

      Now of course, many bills contain a definition section and courts are generally constrained by such definitions within the bill itself. Also, a court will give consideration (though not necessarily great deference) to findings from an Administrative agency charged with authority or responsibility under the law. And when dealing with an ordinary law passed by Congress, Congress itself is certainly free to alter the law later and reword it or add or take away from it. Congress changes normal laws all the time.

      But the Constitution is different in that Congress does not have the ready ability to change it, except through amendment. I think the Court would find that definitions of Constitutional terms fall within the Court’s purview unless they are defined in an amendment.

      So Congress could attempt to pass an Amendment defining a person such that it did not include mutants, but not a mere law doing so. Also, the Court could potentially make the finding that mutants were not persons for Constitutional purposes, but that would seem extremely unlikely.

      • “So Congress could attempt to pass an Amendment defining a person such that it did not include mutants, but not a mere law doing so.”

        This is a technical point, but Congress does not pass amendments. Congress can propose an amendment by a two-thirds vote in both houses, but ultimately three-quarters of the states must ratify it for it to become effective. That’s why the amendment option is unfeasible as a practical matter unless almost everyone in the country is anti-mutant.

      • TimothyAWiseman

        Good point. What I should have said is “Congress could attempt to get an ammendment passed…”

        Thanks.

      • “I do not think that a law could be passed to define a term within the Constitution.”

        The definition of “Natural-born citizen” (one of the qualifications to be President) — i.e., who is a citizen by birth — is regularly tweaked by Congress, for citizens’ children born abroad.

      • “The definition of “Natural-born citizen” (one of the qualifications to be President) — i.e., who is a citizen by birth — is regularly tweaked by Congress, for citizens’ children born abroad.”

        No it isn’t. The original immigration law of 1790 defined the term, but it was repealed without explanation in 1795, and every immigration law since has not used the “natural born” language. There was a proposed Natural Born Citizen Act (S. 2128, 108th Cong. (2d Sess. 2004)), but it didn’t make it out of committee.

        Furthermore, “The suggestion that a Congress, even one that included some of the drafters of the constitution, can by statute interpret the Constitution, raises serious questions. The Supreme Court has expressed skepticism at the notion that terms in the original Constitution can be construed with reference to subsequent congressional enactments.” Lawrence Friedman, An Idea Whose Time Has Come—The Curious History, Uncertain Effect, and Need for Amendment of the “Natural Born Citizen” Requirement for the Presidency, 52 St. Louis U. L.J. 137, 145 (2007) (citing Freytag v. C.I.R., 501 U.S. 868, 886-87 (1991)).

    • Melanie gives a practical obstacle, but a veto could be overridden if there was enough support in Congress. Timothy’s point is the larger one: if Congress could define words in the Constitution then it could effectively amend the Constitution with a simple majority vote, which would be an end-run around the proper amendment process.

      I suspect a court would have no trouble finding mutants to be persons with respect to the law. Mutants can interbreed with humans, and the genetic difference is apparently very slight (a single “X gene,” as I understand it). Further, mutants can be and often are the children of two genetically typical humans, and it would be very hard to argue that the living child of two legal persons would ever not be a legal person.

      • But my idea is that it would be a stealth sort of thing — they wouldn’t be explicitly defining “person” as it’s used in the Constitution, but just in general passing a law that defined what a person was in any legal context (as opposed to just taking it for granted as is currently done). They might not even mention the Constitution, since most people wouldn’t even stop to think that being a person is one of the implicit qualifications enumerated in Article II (and indeed I’m not even entirely sure it has to be interpreted that way). Of course, if they managed to get the law passed in that sneaky way and then said “Oh, by the way, this new legislation just happens to outlaw having mutant presidents,” that would probably lead to a Supreme Court challenge and get the law overturned or modified.

  4. If I recall, in Nixon’s case it was argued that an impeachable offense is whatever Congress says is one.

    Of course, “mutation” refers to a genetic condition, so talking about “turning people into mutants” is nonsense.

    • The Marvel Universe term for someone genetically altered during their lifetime, rather than at conception, is “mutate” rather than “mutant.” For instance, Peter Parker and Bruce Banner are mutates.

      • It gets even stranger when you consider the fact that every human who has ever existed has some mutation. It’s simply that the vast majority are so minor that they effectively change nothing. It’s entirely possible (albeit unlikely in Marvel) for the president to be changed in such a way that it would be impossible to prove that it wasn’t his own natural changes.

    • Unrealistic or not, it’s pretty well established that mutation (in the superpower-granting sense) is a readily identifiable condition in the Marvel universe.

      • He has a point though. If one of the qualifications of president were that he had to be “white” would a president have to step down if he got a tan? That’s what Magneto’s device was: a giant tanning bed.

    • As James Daily pointed out in the original article, “ On the other hand, no one is perfect, and some trumped-up charge could probably be dug up.”

      To extend on the comment (made Gerald Ford) that “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Murder may not be an impeachable offense for a President with strong backing in the House, but jay-walking just might be for someone that Congress was desperate to dispose of, and I think it is safe to say that anyone who is not a candidate for sainthood has far worse than jay-walking than can be found in the past to charge them with rather than trying to go the strained route of calling being a mutant itself a crime for this purpose.

  5. Don’t options III and IV run up against the prohibition against ‘ex post facto’ laws?

    • Well, option IV doesn’t because a constitutional amendment could simply add “notwithstanding the prohibition against ex post facto laws.” With regard to option III: it depends on whether the courts saw the law as punitive or not. Lots of laws are retroactive; the Constitution only forbids retroactive punishment. Sometimes nonpunitive laws contain grandfather clauses (e.g. a new licensing scheme might not apply to people who were already licensed under the old scheme), but they don’t have to.

      Adding a broad qualification for office seems more like a regulation than a punishment to me. Imagine if Congress raised the age requirement to, say, 40 (blatantly unconstitutional for other reasons, but bear with me). It’s a bit of a stretch to consider that a punishment of 35-39 year olds.

  6. A constitutional AMENDMENT would ipso facto override that, as well as the clause forbidding bills of attainder.

  7. I can think of one way Magneto’s plan might backfire:

    “Look what those evil mutants have done to me! They have tainted my body with their horrid filth! Stand with me, brethren, and know that I remain a staunch opponent of these vile monsters, even as they start to try to turn all of us into THEM!”

    Through demagoguery, Senator Kelly might have managed to earn himself the exemption from the rule because he is a victim OF mutants. He might even start playing both sides a bit: mutants who side WITH his power base get to be considered to have a “disability” that needs “help,” and so of course if they agree to registration and whatever other legal controls he seeks to put in place, they get certain special privileges through the ADA and Social Security and such. Meanwhile, he mollifies his anti-mutant base by letting them feel superior to those “disabled victims of genetics,” and view those who are pro-mutant-rights as violent psychopaths seeking to enshrine sickness as superiority.

    At the risk of invoking Godwin’s Law, I will point out that Hitler was NOT Aryan by his own definition, and that it’s suspected he might’ve been part Jew by blood. Senator Kelly being a mutant wouldn’t necessarily do anything but enhance his anti-mutant career, given the circumstances.

    • True, but I don’t think Magneto sincerely expected that the world leaders he mutated would see the light and reform their politics; rather, he was going for a poetic-justice kind of punishment, forcing them to spend the rest of their lives as the very thing they hated.

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