The Peoples’ Constitution: The 25th Amendment

By Ben Lenhart

Added to the Constitution in 1967, partly in response to John Kennedy’s assassination, the 25th Amendment has been much in the news lately, with stories about its possible use and misuse. The Amendment creates a dramatic process to transfer power to the Vice President (VP)—even against the wishes of the President—if the President is unable to fulfill his duties. This article aims to give a short overview of the history and workings of this important Amendment while staying neutral on politics.

Key Provisions of the 25th Amendment

First, the amendment confirms that the VP “shall become President” when the President dies, resigns or is removed from office.  While this might seem obvious, it clarifies the original text of the Constitution, which somewhat confusingly said that the powers and duties of the office of the President would “devolve to the VP.”  The amendment confirms not just that the VP gets those “power and duties” but that he actually becomes the President.

Second, the amendment provides that the President gets to nominate a new VP when that office becomes vacant.

Third, it sets up a process for situations where the President is unable to handle his duties. It provides that when the President states that he cannot “discharge the powers and duties of his office [for example, due to serious medical issues] … such powers and duties will be discharged by the VP.” So far, so good—none of this is controversial.

The controversy— and much of the recent press—comes with the fourth and final section of the amendment, which deals with situations where the President and VP disagree on the President’s capacity to carry out his duties. This section permits the VP to transmit to Congress—even against the will of the President—a statement that the President is unable to discharge his powers and duties. However, to move forward the VP needs the support of a majority of the “principal officers of the executive departments” (or such other body as Congress may by law provide). Upon such transmittal, the VP “immediately assumes the powers and duties of the office as Acting President.” But the President can fight back. The President can declare to Congress that, in fact, he is able to handle his duties. If such a dispute arises, Congress must quickly hold a hearing, and two thirds of both houses of Congress must agree with the VP for the VP to be the “Acting President.”  If the vote falls short, the President retains his office.

In short, it is quite hard for the VP to remove the President if the President fights the removal. First, unless Congress sets up another mechanism (which it has not done so far) the VP must convince a majority of the cabinet—all of whom were likely appointed by the President—to agree with the removal effort. Second the VP must then convince two thirds of both houses of Congress that the President is unable to fulfill his duties (in contrast, impeachment requires only two thirds of the Senate).

Actual Use

George W. Bush twice invoked Section Three of the Amendment and transferred power to VP Dick Cheney for brief periods (less than a day) while Bush underwent a medical procedure. Ronald Reagan briefly transferred power (under section Three) to VP George W. Bush for similar medical reasons. On several other occasions, usually for medical reasons, presidents have considered invoking Section Three but ultimately chose not to.

Section Four—involuntary removal of the President—has never been invoked (although serious consideration was given to invoking it after the 1981 assassination attempt against Reagan, and it was also said to have been considered by certain presidential staff during the latter part of the Reagan presidency).

Of course, the Amendment has only been around since 1967. Earlier Presidents—such as Woodrow Wilson or Dwight Eisenhower—experienced periods of incapacity because of severe medical conditions, and Sections Three or Four most likely would have been invoked had they existed at the time.

Court Cases

Unlike most Constitutional issues, very few courts haves interpreted the 25th Amendment. In Clinton v. Jones—where the Supreme Court held that Paula Jones had the right to depose President Clinton in her sexual harassment case—the Court said that the 25th Amendment was “adopted to ensure continuity in the performance of the powers and duties of the office [of President]; one of the sponsors of that Amendment stressed the importance of providing that a ‘at all times’ there be a President ‘who has complete control and will be able to perform’ those duties.”

While this case confirms the main purpose of the Amendment, it does not deal with the thorny issue of just how sick, or how incapacitated, a President must be before power is transferred to the VP. This is largely a political question that must be decided by “We the People,” through our congressional representatives. While history provides no clear guide, the answer could be similar to then-congressman Gerald Ford’s description of the test for impeachment: “An impeachable offense is whatever a majority of the House of Representatives consider it to be at a given moment in history.”

President Is Incapacitated but VP Takes No Action

Imagine a VP—out of loyalty to the President—refuses to invoke the 25th Amendment even though the President is clearly incapacitated and unable to function. The Constitution provides no clear answer: as a formal matter that Amendment can’t be invoked without the VP’s participation.  However, a sustained failure of the President to carry out his presidential duties (even for medical reasons) could itself be a reasonable basis for impeachment, which we turn to next.

Relation to Impeachment

A future article will take a deep dive into the world of impeachment, but here is the key difference between impeachment and the 25th Amendment. The former requires a showing that the President has engaged in “treason, bribery, or other high crimes and misdemeanors.” In other words, impeachment requires a serious, although not necessarily criminal, abuse of public power or a serious failure to perform the duties of the office.   In contrast, the 25th Amendment requires a serious medical disability (mental or physical) that truly prevents a President from being able to fulfill his duties.

Conclusion

America fought the Revolutionary War to throw off the English monarchy. America hates the very idea of a king, much less a dictator. Our founding fathers worked hard to create a Constitution that would prevent our President from growing into a “ruler for life”—a de facto king. The Constitution provides many powerful mechanisms for limiting the power and tenure of the President: (1) impeachment; (2) the right of the people to vote a President out of office; 3) the 22nd Amendment, which limits the President to a maximum of two terms; and 4) the many powers of Congress and the Courts to check and balance the President. All of these are part of “separation of powers,” which lies at the heart of the Constitution.  Interestingly, the 25th Amendment also creates a path to remove the President, but quite unlike the above examples its goal is not to “check and balance” a corrupt or too-powerful President, but rather just the opposite:  to ensure that the person holding the office of the President is capable of fulfilling the immense duties of that office.

Ben Lenhart

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

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