Archive for the ‘Fifth Amendment’ Category

Federal Judge Bars Enforcement Of EO Related To Diversity Training – JD Supra

Key Points:

Background

On September 22, 2020, the Trump administration issued EO 13950 prohibiting federal agencies, federal grant recipients, and federal contractors from endorsing divisive race and gender concepts as we discussed in our commentary on October 6, 2020. EO 13950 forbids diversity and inclusion training that promotes or endorses divisive concepts as defined in EO 13950. On December 22, 2020, the U.S. District Court, Northern District of California grantedPlaintiffs motion for a preliminary injunction in part and issued an Order in Santa Cruz Lesbian and Gay Community Center, et al, v Donald J. Trump, et al., imposing a nationwide preliminary injunction that enjoins the federal agencies named as Defendants (federal government) from enforcing EO 13950s provisions under 4, directed at federal contractors, and 5, directed at federal grant recipients. The Order is effective immediately and directs the federal government to provide notice to all federal contractors and grant recipients as well as sub-contractors and sub-grantees covered by EO 13950 of the injunction imposed by the Courts Order.

Basis of the Courts Order

The Plaintiffs in this class-action lawsuit are non-profit organizations and a subcontractor that provide health care and critical services to the lesbian, gay, bisexual and transgender community and people living with the human immunodeficiency virus (HIV). Plaintiffs claim that EO 13950 violates their rights under the Free Speech clause of the First Amendment because it impermissibly chills the exercise of constitutionally protected speech based on the content and viewpoint of their speech and violates their rights under the Due Process clause of the Fifth Amendment because EO 13950 infringes on their protected right to free speech and fails to provide adequate notice of the conduct it purports to prohibit.

The Court agreed that Plaintiffs are likely to prevail on their claim that EO 13950 violates their First Amendment rights because:

Regarding Plaintiffs claims of due process violations under the Fifth Amendment, the Court agreed that the vagueness of the prohibited conduct inhibits the exercise of Plaintiffs freedom of expression and that the federal governments own interpretation of the scope of the prohibited conduct creates even more uncertainty. It concluded that the Plaintiffs established a significant adverse impact on their organizations and clients as a result of the loss of opportunities and income based on Plaintiffs and their clients understanding of the effect of EO 13950. The Court noted that the federal governments dislike of the speech at issue, while irrelevant to the analysis, permeated its briefs.

EO 13950 Provisions Enjoined by Court's Order

The Order explicitly bars the federal government from taking any action intended to effectuate or enforce 4 and 5 of EO 13950, including but not limited to the specific actions enumerated in the Courts Order. The Courts Order specifically prohibits the federal government from taking the following actions:

Workplace training: The federal government is prohibited from requiring the inclusion of express provisions in government contracts that prohibit the discussion of concepts defined as divisive race and gender concepts in workplace training programs, and from enforcing such express provisions that have been included in government contracts since the issuance of EO 13950.

Notice requirements to labor representatives and unions: All notice requirements imposed on federal contractors to labor unions or employee representatives are enjoined.

Penalties and enforcement procedures based on non-compliance: The federal government is prohibited from imposing sanctions, including but not limited to canceling, terminating or suspending a contractors or subcontractors federal contract in whole or in part, or declaring a contractor or subcontractor ineligible for federal contract awards.

Mandatory flow-down contract clauses: The federal government is prohibited from requiring contractors to include a contract clause prohibiting divisive race and gender concepts in subcontracts and supply agreements with subcontractors and vendors that provide services and supplies under the contract. Contractors also cannot be required to enforce such contract clauses against subcontractors and vendors.

Collecting information and investigating non-compliance: The federal government is precluded from initiating investigations, taking other agency action to implement EO 13950, and taking enforcement actions under EO 13950 and is barred from using itshotline to collect information regarding non-compliance with the provisions ofEO 13950.

Requests for Information: The federal government is enjoined from seeking all information from any entity regarding training, workshops or programming provided to employees of government contractors and subcontractors with respect to the provisions of EO 13950 and related regulations issued by the Office of Federal Contract Compliance Programs (OFCCP).

Requirements applicable to federal grant recipients: The federal government is proscribed from:

What this means to you

The Courts nationwide injunction has delayed the investigative and compliance actions and enforcement actions authorized under EO 13950. The election of Joe Biden will likely result in President-elect Biden overturning EO 13950 shortly after taking office on January 20, 2021. As a result, the prohibitions, compliance actions, requests for information and enforcement actions imposed on federal contractors and federal grantees under EO 13950 and by the OFFCP are in abeyance until either the injunction is made permanent or lifted, or the executive order is overturned. The federal governments hotline established to receive complaints regarding violations of EO 13950, states that it is no longer accepting complaints in accordance with the Courts December 22, 2020 Order. It does allow callers to continue to leave messages and refers callers who desire to file complaints of discrimination to another phone number or to a page on their website.

Tracey Oakes OBrien, Legal Content and Knowledge Manager is a co-author of this content.

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Federal Judge Bars Enforcement Of EO Related To Diversity Training - JD Supra

No early release for Ciavarella | Letters to the Editor | citizensvoice.com – Wilkes-Barre Citizens Voice

Editor: There should be no compassionate release or home confinement for poor kids-for-cash judge Mark Ciavarella (Dec. 29). His release date is June 18, 2035.

He claims he served a substantial portion of his sentence 112 out of 386 months. He wants a compassionate release due to health concerns and claims he suffers from chronic kidney disease, bronchitis, hypertension, chest pains, hip and shoulders aches and rapid heartbeats. All that list sounds like what hard-working citizens have by working honestly and doing without things just to support their families.

Where was his compassion when he sent juveniles to the detention center that he and former judge Michael Conahan profited from? The judges received $2.8 million and ruined many young lives. What did the judges say to them? You did the crime, now do the time?

He probably lives in a hotel room, not a regular prison cell. And he should not have home confinement. Hed only suffer from boredom but have friends over to play cards, drink, eat good food, sleep in silk pajamas and in his bed.

On judgment day, we will all stand facing God as he opens our book of life as we face judgement. We cant use our Fifth Amendment, we cant recoil or have someone cover for us. Hes the only perfect judge, not Ciavarella, who tried to play God. Pride goeth before a fall. He should stay in prison till 2035.

My heart cries for all the kids who suffered and may still be suffering because of his no-compassion sentences. God said vengeance is mine, I will repay.

Lizza Lamoreaux

Edwardsville

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No early release for Ciavarella | Letters to the Editor | citizensvoice.com - Wilkes-Barre Citizens Voice

TELEDYNE TECHNOLOGIES INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an…

Item 1.01. Entry into a Material Definitive Agreement.

On January 19, 2021, Teledyne Technologies Incorporated ("Teledyne") enteredinto the following agreements:

First Amendment to Amended and Restated Term Loan Credit Agreement

On January 19, 2021, Teledyne and its subsidiary, Teledyne Netherlands B.V., asborrowers, and certain other subsidiaries of Teledyne, as guarantors, enteredinto an amendment (the "Term Loan Amendment") to Teledyne's Amended and RestatedTerm Loan Credit Agreement dated as of October 30, 2019 (as so amended, the"Term Loan Credit Agreement"). Among other things, the Term Loan Amendment(i) amends the definition of Permitted Acquisition to include the FireworkAcquisition (each as defined therein), which is the acquisition to beconsummated pursuant to that certain Agreement and Plan of Merger, dated as ofJanuary 4, 2021, among Teledyne, FLIR Systems, Inc., Firework Merger Sub II,LLC, a wholly owned subsidiary of Teledyne and Firework Merger Sub I, Inc., awholly owned subsidiary of Firework Merger Sub II, LLC, (ii) amends theConsolidated Net Debt to EBITDA Ratio (as defined therein) for periods followingthe Firework Acquisition, (iii) modifies the "bail-in" acknowledgments of theparties therein, and (iv) modifies certain of the negative operating covenantstherein in certain respects.

Sixth Amendment to Amended and Restated Credit Agreement

On January 19, 2021, Teledyne, as borrower, certain of its foreign subsidiaries,as designated borrowers, and certain of its other subsidiaries, as guarantors,entered into an amendment (the "Sixth Amendment") to Teledyne's Amended andRestated Credit Agreement dated as of March 1, 2013, as amended by that certainFirst Amendment to Amended and Restated Credit Agreement dated as of December 4,2015, that certain Second Amendment to Amended and Restated Credit Agreementdated as of January 17, 2017, that certain Third Amendment to Amended andRestated Credit Agreement dated as of March 17, 2017, that certain FourthAmendment to the Amended and Restated Credit Agreement, dated as of March 15,2019, and that certain Fifth Amendment to Amended and Restated Credit Agreementdated as of October 30, 2019 (as so amended, the "Credit Agreement"). Amongother things, the Sixth Amendment (i) amends the definition of PermittedAcquisition to include the Firework Acquisition (each as defined therein), (ii)amends the Consolidated Net Debt to EBITDA Ratio (as defined therein) forperiods following the Firework Acquisition, (iii) modifies the "bail-in"acknowledgments of the parties therein, and (iv) modifies certain of thenegative operating covenants therein in certain respects.

The descriptions set forth above are qualified in their entirety by the TermLoan Amendment and the Sixth Amendment, copies of which are filed as exhibits tothis report and are incorporated by reference herein.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an

Off-Balance Sheet Arrangement of a Registrant.

The information set forth above in Item 1.01 is hereby incorporated into thisitem 2.03 by reference.

--------------------------------------------------------------------------------

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TELEDYNE TECHNOLOGIES INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an...

FLIR : Filing of certain prospectuses and communications in connection with business combination transactions – Marketscreener.com

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR SECTION 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): January 19, 2021

Teledyne Technologies Incorporated

(Exact name of registrant as specified in its charter)

Delaware

1-15295

25-1843385

(State or other jurisdiction

(Commission

(I.R.S. Employer

of incorporation)

File Number)

Identification No.)

1049 Camino Dos Rios

Thousand Oaks, California

91360-2362

(Address of principal executive offices)

(Zip Code)

Registrant's telephone number, including area code: (805) 373-4545

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

Title of each class

Trading

Name of each exchange on

Symbol(s)

which registered

Common Stock, par value $.01 per share

TDY

New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR 240.12b-2).

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

Item 1.01. Entry into a Material Definitive Agreement.

On January 19, 2021, Teledyne Technologies Incorporated ("Teledyne") entered into the following agreements:

First Amendment to Amended and Restated Term Loan Credit Agreement

On January 19, 2021, Teledyne and its subsidiary, Teledyne Netherlands B.V., as borrowers, and certain other subsidiaries of Teledyne, as guarantors, entered into an amendment (the "Term Loan Amendment") to Teledyne's Amended and Restated Term Loan Credit Agreement dated as of October 30, 2019 (as so amended, the "Term Loan Credit Agreement"). Among other things, the Term Loan Amendment (i) amends the definition of Permitted Acquisition to include the Firework Acquisition (each as defined therein), which is the acquisition to be consummated pursuant to that certain Agreement and Plan of Merger, dated as of January 4, 2021, among Teledyne, FLIR Systems, Inc., Firework Merger Sub II, LLC, a wholly owned subsidiary of Teledyne and Firework Merger Sub I, Inc., a wholly owned subsidiary of Firework Merger Sub II, LLC, (ii) amends the Consolidated Net Debt to EBITDA Ratio (as defined therein) for periods following the Firework Acquisition, (iii) modifies the "bail-in" acknowledgments of the parties therein, and (iv) modifies certain of the negative operating covenants therein in certain respects.

Sixth Amendment to Amended and Restated Credit Agreement

On January 19, 2021, Teledyne, as borrower, certain of its foreign subsidiaries, as designated borrowers, and certain of its other subsidiaries, as guarantors, entered into an amendment (the "Sixth Amendment") to Teledyne's Amended and Restated Credit Agreement dated as of March 1, 2013, as amended by that certain First Amendment to Amended and Restated Credit Agreement dated as of December 4, 2015, that certain Second Amendment to Amended and Restated Credit Agreement dated as of January 17, 2017, that certain Third Amendment to Amended and Restated Credit Agreement dated as of March 17, 2017, that certain Fourth Amendment to the Amended and Restated Credit Agreement, dated as of March 15, 2019, and that certain Fifth Amendment to Amended and Restated Credit Agreement dated as of October 30, 2019 (as so amended, the "Credit Agreement"). Among other things, the Sixth Amendment (i) amends the definition of Permitted Acquisition to include the Firework Acquisition (each as defined therein), (ii) amends the Consolidated Net Debt to EBITDA Ratio (as defined therein) for periods following the Firework Acquisition, (iii) modifies the "bail-in" acknowledgments of the parties therein, and (iv) modifies certain of the negative operating covenants therein in certain respects.

The descriptions set forth above are qualified in their entirety by the Term Loan Amendment and the Sixth Amendment, copies of which are filed as exhibits to this report and are incorporated by reference herein.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth above in Item 1.01 is hereby incorporated into this item 2.03 by reference.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits

EXHIBIT INDEX

Description

Exhibit 10.1 First Amendment to Amended and Restated Term Loan Credit Agreement dated as of January 19, 2021, by and among Teledyne Technologies Incorporated and Teledyne Netherlands BV, as borrowers, the guarantors party thereto, the several banks and other financial institutions from time to time parties thereto as lenders and Bank of America, N.A., as administrative agent

Exhibit 10.2 Sixth Amendment to Amended and Restated Credit Agreement dated as of January 19, 2021, by and among Teledyne Technologies Incorporated, the designated borrowers party thereto, the guarantors party thereto, the lenders party thereto and Bank of America, N.A., as administrative agent, swing line lender and L/C issuer

Exhibit 104 Cover Page Interactive Data File (embedded within the Inline XBRL Document)

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

TELEDYNE TECHNOLOGIES INCORPORATED

By: /s/ Melanie S. Cibik

Melanie S. Cibik

Senior Vice President, General Counsel, Chief

Compliance Officer and Secretary

Dated: January 21, 2021

This is an excerpt of the original content. To continue reading it, access the original document here.

Disclaimer

FLIR Systems Inc. published this content on 21 January 2021 and is solely responsible for the information contained therein. Distributed by Public, unedited and unaltered, on 21 January 2021 19:49:00 UTC

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FLIR : Filing of certain prospectuses and communications in connection with business combination transactions - Marketscreener.com

Overlegalizing Impeachment and the Twenty-Fifth Amendment – JURIST

Mark Graber, Regents Professor at the University of Maryland Carey School of Law, and Sanford Levinson, Garwood Centennial Chair at University of Texas at Austin School of law, discuss the overlegalizing of the impeachment of Donald Trump in the wake of the violence at the U.S. Capitol...

The monopolistic control lawyers and the Supreme Court assert over constitutional meaning is threatening to pervert and sidetrack congressional efforts to free Americans of a president who, even in his last ten days of office, terrifies millions of citizens across the political spectrum. The Constitution offers at least two paths by which we the people can either fire a grossly deficient president or prevent an out-of-control lame duck from wreaking havoc on the body politic. One is impeachment, which appears increasingly likely in the House of Representatives, perhaps even early this week. The other is the 25th Amendment of the U.S. Constitution, which requires that the vice-president handpicked by the president lead what might be perceived as a palace coup against the Leader. Common sense and the Constitution support both means for ridding the United States of rule by Donald Trump. Both risk being sidetracked by unnecessary legal technicalities that only lawyers who demand, contrary to common sense and the Constitution, that the process for maintaining the integrity of the Government ought to prioritize legal formalism over political substance.

Overlegalization is infecting impeachment and efforts to employ Section Four of the Twenty-Fifth Amendment. The Congressional articles of impeachment, drafted by lawyers, assume Donald Trump can be impeached for inciting an insurrection against the government only if his speech could be prosecuted under the First Amendment. Prominent voices complain that the processes demanded by Section Four, which require a judgment that the president can no longer fulfil the duties of office, cannot be done with dispatch because the Vice President must provide elaborate proof by reliable medical evidence that the president is in fact physically or mentally impaired. Perhaps both propositions make sense to well-trained lawyers. The problem is that both defy common sense and, we suggest, the Constitution. The impeachment clause is best interpreted as permitting the impeachment of a President who incites insurrection, even if, by stipulation, the incitement might not be subject to prosecution under the Supreme Courts First Amendment jurisprudence. There is no need to subject a president to elaborate tests and then await a medical diagnosis to remove a president who has demonstrated to any cogent observer a manifest unwillingness or inability to perform the duties of office.

The present Articles of impeachment against Donald Trump track the conditions on which the Supreme Court has declared the government may punish advocacy of criminal misconduct. Brandenburg v. Ohio (1968) is the most important Supreme Court precedent. That case arose after Clarence Brandenburg was convicted by a state court of criminal syndicalism for telling a Ku Klux Klan gathering in Ohio that they should seek revengeance against the Jews and Catholics ruining the country. The Court decision unanimously (and, we believe, correctly) overturning that conviction held that all advocacy, however repellant, is protected by the First Amendment. Prohibition is legitimate if and only if the speaker engaged in incitement rather than advocacy. The difference between advocacy and incitement is a legal one. The speaker must not only try to whip up the crowd to act, but the lawless action must also be likely to occur as a result of the incitement. One might view incitement in this context as appealing to the emotions of an audience to provoke them to act and, to act now. The Court in Brandenburg added that punishment is legitimate only if the lawless action produced by the incitement was imminent. If, on the other hand, the incitement is to act tomorrow, instead of right now, then there would, in Louis Brandeis important formulation during the 1920s, be time for good speech to overcome the negative effects of the bad speech that the state was seeking to punish. Even meeting all these criteria might not be enough to justify punishment under First Amendment precedent. The justices insist the lawless action be likely to cause significant damage. All these elements are set out in the congressional indictment against Trump. That document declares Trump willfully incited violence against the Government of the United States, that Trump incited imminent lawless action, that incitement caused violent, deadly, destructive, and seditious acts, and that those acts were foreseeabl[e].

We have grave reservations about whether progressives would interpret the First Amendment as not protecting the same speech Donald Trump made on January 6th, 2021, if that speech had been made by a different person. The classic marker distinguishing incitement from mere protected advocacy is whether time exists so that bad speech can be corrected by good speech. Such time clearly existed outside of Congress on January 6th, 2021. Trump did not urge his followers to storm the castle immediately. After all, the demonstration was initially uptown relative to the Capitol. Protestors had to march down Pennsylvania Avenue. They might have then hesitated as to what to do next. John Stuart Mill, in his class On Liberty, says that it would be legitimate to punish someone advocating burning down a corn dealers home in front of the home itself. But if one is advocating merely a march on the home from miles away, the situation is entirely different. One may or may not agree, but a great deal of free-speech theory is built on that distinction.

Trump did not explicitly mention specific unlawful actions. Perhaps the crowd, like those listening to Marc Antonys eulogy to Julius Caesar, knew what he was really saying, but, like Shakespeares version of the clever Antony, Trump did not to use any magic words, such as invade the Capitol and terrorize the members of Congress. Moreover, the storming of Congress took place hours after he spoke to the gathering. All members of the mob had ample time to reflect on Trumps statements and make a deliberate decision about whether to violate the law. One suspects that many of those listening to Trump decided not to join the mob moving toward the Capitol or refrained from climbing the steps.

Imagine that Trump had won a narrow victory in the electoral college, because of what could legitimately be thought to be the suppression of Democratic votes or, even worse, because Republican legislatures simply substituted a Republican slate of electors for the Democratic electors who had seemingly won the popular vote in a state. Some prominent Democrat might have given a far more articulate version of the Trump speech to a crowd of progressive protestors enraged, say, by the decision of the Republican-dominated Pennsylvania, Michigan, Arizona, and Georgia legislatures to substitute Trump electors for the Biden electors chosen by a majority of state voters. That speech would clearly be protected under Brandenburg, and not because we are more inclined to protect Democrats than Republicans.

The real problem is equating the President of the United States with an ordinary citizen or even a prominent leader. Unlike ordinary citizens, Donald Trump took an oath to maintain and uphold the laws of the United States, including the laws he disagreed with. We have no doubt that the president or relevant decision-maker could have constitutionally fired for dereliction of duty any other law enforcement official who gave the same call for lawless action to the same potential mob. There is a difference between Martin Luther Kings calling for civil disobedience and the same call issued by those who have taken an oath to enforce the laws of the land. The President should not be an exception to the principle that those in charge of upholding the law should not encourage the violation of the law. Disciplining Trump by removing him from office is even more pressing that would be the case for an ordinary police officer who gave the same speech in the same circumstances. As Ross Perot argued in 1992, the President of the United States is only an employee of the American people, no more, no less. If he does not live up to his terms of employment, including basic fidelity to the Constitution that he swore an oath to uphold and protect, he should be fired.

Common sense suggests impeachment is warranted when the president encourages persons to violate federal laws or interfere with the implementation of federal laws in ways that are likely to cause significant damage. Impeachment is particularly warranted when the laws the president encourages others to violate are at the core of constitutional democracy in the United States. This common-sense standard leaves presidents free to complain about existing laws, challenge those laws in courts, and even refuse to implement laws they believe unconstitutional. Brandeiss claim in Whitney v. California (1927) that the First Amendment ought to protect the speech of persons whose advocacy of illegal conduct causes only minor harm, such as a trespass on unoccupied land, applies to presidential impeachment as well. Nevertheless, when a president, in essence, encourages a group of potentially peaceful protesters to transform themselves into an insurrectionary mob determined to interfere with members of Congress engaged in the solemn rite of certifying the identity of the next President of the United States, no one ought to care whether the First Amendments requirement of incitement and imminence or, for that matter, likelihood, are met.

Overlegalization is as much a plague on the Twenty-Fifth Amendment as on the impeachment process. The letter of the Twenty-Fifth Amendment suggests that implementation may be rapid. Make one of us the Vice-President and the other the cabinet, and we can produce the following letter in three minutes (90 seconds if we do not try to fix typos)

Dear Speaker of the House and President Pro Tem of the Senate:

The Vice President and majority of the cabinet have concluded that the President is unable to fulfil his duties. Therefore, under Section Four of the Twenty-Fifth Amendment, the Vice President will serve as President until further notice.

Thank you for your kind consideration.

Vice President Sandy Levinson

Secretary of Everything Mark A. Graber

The only reason this process might take longer than three minutes is if we had to document that the President is unable to fulfil his duties. The Constitution does not require such documentation. Nor does common sense.

Consider the various ways we might document that Donald Trump is unable to fulfill the duties of the presidency that would meet a more stringent Section Four. If a neurologist took an x-ray of Donald Trumps brain that showed a deformity or conducted other tests demonstrating chemical imbalance that caused him to incite insurrection against the United States, Section Four would be met. We might find a psychiatrist or psychologist, many of whom we suspect are willing to testify that Trump has a psychiatric or psychological condition that makes him unable at crucial times to perform the duties of office. An obvious problem is whether Donald Trump would agree even to an x-ray, let alone a full neurological workup or psychiatric interview that could serve as the basis for a professional diagnosis. Would we really be dependent on his cooperation? Can we imagine forcing him to sit down and speak to the psychiatrist or taking the neurological tests? Could we substitute Mary Trumps observations over the years about Donald Trumps behavior?

Requiring the Vice President and cabinet to run through these hoops defies common sense. Donald Trumps actions before, on, and after January 6th, 2021, demonstrate that he is unable to fulfil the duties of office. No one at this point should need neurological, psychiatric, or behavioral testimony to explain or document this inability. If a president repeatedly and at crucial times fails to fulfil the duties of office, that president should be considered constitutionally unable to fulfill those duties. Explanations are for doctors to hypothesize, not for politicians to worry about. Courts sometimes take judicial notice of what is obvious to all. Judicial notice, should be taken that Trump is not fit to exercise presidential powersincluding powers as commander-in-chief of the armed forces to do God knows whatfor even one more day.

Permitting the Vice-President and majority of the cabinet to determine whether a president is unable to fulfill the duties of the presidency no more threatens a coup than permitting a persons chosen spouse and family members to determine that they are incompetent. The President selects the Vice-President and cabinet. Cabinet members can be fired at will. The Yiddish proverb that if two people say you are drunk, you should go lie down provides the appropriate standard. If the Vice President and majority of the cabinet, who have every incentive to be sycophants, maintain the President is unable to fulfill the duties of office, the President should go lie down.

Constitutional systems are run by common sense, not by legal technicalities. We should not overlegalize impeachment by demanding that the president engages in speech unprotected by the first amendment. Common sense dictates that a president who encourages a mob to interfere with congressional proceedings ought not to remain in office, even if such speech might not be subject to criminal punishment. We should not overlegalize the 25th Amendment by demanding professional certification. A president who publicly fails to fulfil the basic duties of office ought to be removed, even if no professional can document immediately the neurological or psychiatric causes of this failure. Presidents, in short, must meet the minimum standards of competence suggested by common sense. Donald Trump has not. Anyone, not a trained lawyer can easily realize his incapacity to exercise power. To the extent that lawyers do not, that raises more questions about the meaning of thinking like a lawyer than about the fitness of Donald Trump to continue in office.

Mark A. Graber is the Regents Professor at the University of Maryland Carey School of Law. He is the author of A New Introduction to American Constitutionalism (Oxford 2013) and Dred Scott and the Problem of Constitutional Evil (Cambridge 2006), a coeditor with Sandy Levinson and Mark Tushnet of Constitutional Democracy in Crisis? (2018) and the American Constitutionalism series with Howard Gillman and Keith Whittington. All told Professor Graber has published more than one hundred books, articles or essays on constitutional law, constitutional history, constitutional development and other subjects in which constitutional is used as an adjective.

Professor Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas at Austin School of Law. Professor Levinson has published approximately 400 articles, books, book reviews, and commentaries with various journals and major publications. He has been a visiting faculty member at a number of universities both in the US and abroad in London, Paris, Jerusalem, Australia, and New Zealand.

Suggested Citation: Mark Graber and Sanford Levinson, Overlegalizing Impeachment And The Twenty-Fifth Amendment, JURIST Academic Commentary, January 13, 2021, https://www.jurist.org/commentary/2021/01/graber-levinson-impeachment-amendment/.

This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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Overlegalizing Impeachment and the Twenty-Fifth Amendment - JURIST