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).
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.
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.