In the middle of riots, debates, protests, pandemics and elections, people keep asking me about the 25th Amendment. There’s a quiet sense of dread, a sense of foreboding horror in people’s manner as they attempt to unravel and unveil the truth about the 25th Amendment.
I’ll be the first to say. I don’t have all the answers, mostly because when it comes to the 25th Amendment, no one has all the answers.
That being said. I will give you some answers and also explain to you why I am not overly concerned about this new Nancy Pelosi drama.
One: The Issue
What’s the specific issue at hand when people bring up the 25th Amendment? Usually, the issue is this: what is the Constitutional method for handling a presidential vacancy, a vice-presidential vacancy, an unwell or “unable” president?
For instance:, what if a president were in a coma? What happens, Constitutionally? (I find it ironic that the individuals in government today clamor to find out how to Constitutionally solve some of these nit-picky and practical issues but without thinking, they dispel of the Constitution when doing anything else.)
Two: What the Constitution Said
Before the 25th Amendment, the following is what Constitution said regarding any absence or vacancy in the presidential office.
“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”
There are many ambiguous statements and subsequent questions in response to this section of the Constitution. What is an “inability to discharge the Power and Duties of the said Office” or who is tasked with determining that? What does “the Same shall devolve on the Vice President” mean? Does this mean he is president or simply holds the power of president? What happens when the position of Vice-President is vacated for one reason or another?
The unresolved questions and ambiguous answers piled upon themselves over the years following the Constitution’s ratification all the way to Kennedy’s assassination. During this period there were numerous presidential, vice-presidential deaths and vacated offices with no real clear Constitutional method in which to handle such vacancies.
So, when Senator Birch Bayh introduced the idea of the 25th Amendment in 1965, the process of passing it through Congress and the states was rather controversy free. Perhaps the most difficult aspect of drafting the amendment was simply covering all of the potential scenarios regarding a vacant executive office.
Three: What the 25th Amendment Says
Unfortunately, while the 25th Amendment did solve some of the aforementioned questions, it also presented new questions and left some questions still unanswered.
So, what does the amendment actually say? It’s a bit long, so I’ll post a few sections here and then also give you the link to the amendment here if you want to read it all the way through.
Section I deals with the most obvious ambiguity from the Constitution. Is the Vice-President President if the President is no longer in office?
“In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”
What happens if there is a vacancy in the vice-presidency?
“Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”
Section II too is rather straight forward and answered yet another gaping and unanswered question from the original Constitution. How is a vacancy in the role of Vice-President handled? Well, the President nominates a new VP and he must be confirmed by a majority vote in both the House and Senate by a simple majority.
Four: Ambiguity in the 25th Amendment
Section 3 and Section 4 of the 25th Amendment are where things get a little messy. According to the Constitution Center:
“Section 3 allows the President to transfer authority temporarily, by submitting a written declaration that he is ‘unable to discharge the powers and duties of his office.’The President can reclaim those powers and duties later by submitting a second declaration “to the contrary.” President Ronald Reagan (once) and President George W. Bush (twice) transferred authority to their Vice Presidents under Section 3 for a matter of hours while they underwent planned surgeries.”
Section 4 establishes an unclear method for handling a case where the President is unable to fulfill his constitutional role as president. In other words, the president may be in a state where he cannot or will not step aside, even though he is effectively unable to perform his duties. Should such a case occur, the Vice-President and a “group” from the Cabinet or some other body that Congress shall designate the Vice-President to be President. A majority of this group must find and declare a President “unable to discharge the powers and duties of his office”. If they do so, the Vice President immediately becomes acting President.
There are numerous confusing and ambiguous details in both of these sections. For instance, Section 4 mentions “executive departments”.
What departments are they referring to?
Relatedly, who are the “principal officers” of these departments?
The Supreme Court has given their interpretation but it is not necessarily in line with what Congress—the authors of the amendment—claim. And upon what authority can the Supreme Court give concrete interpretations about Constitutional issues that have no concrete answer?
Perhaps though the most important and least obvious answer is, what does it mean for a President to be “unable” to discharge his responsibilities?
Dr. Kalt, professor of law at Michigan State University says:
“The legislative history of Section 4, as well as basic democratic and prudential considerations, suggest that ‘inability’ should be invoked only in limited circumstances. Section 4 was not meant to be a tool for circumventing the impeachment process or for punishing Presidents who make unpopular or unwise decisions. It was meant to deal with situations such as a kidnapping of the President by an enemy, or a physical or mental illness that degrades the President’s faculties or competence to a substantial degree. A President who gives a bad speech plainly is not “unable” within the meaning of Section 4. A President who falls into a coma plainly is.
In between these extremes, though, lie a great variety of debatable cases. When certain White House aides found President Ronald Reagan to be ‘inattentive and inept’ after the Iran-Contra scandal, his staff briefly considered the Section 4 option before dismissing it as unwarranted. Could they have sought President Reagan’s removal if his ‘inattentiveness and ineptness’ had lasted longer or gotten worse? Instead of answering such questions in a clear-cut manner, the creators of the Twenty-Fifth Amendment employed a flexible term that allows for the case-by-case exercise of political and professional judgment.”
Because there are no answers to these questions, the details have basically been left up to the individuals involved in each specific situation. There are many who are concerned that the 25th Amendment can or may be used by a jealous Vice-President to steal the presidency or get around the impeachment process. While this is not out of the question, historically, Vice-Presidents and government have tended to err on the side of the President.
Five: Should There Be Cause for Concern?
Donald Trump’s presidency is certainly not a normal or traditional U.S. presidency, so I don’t believe historical precedent is as relevant in his case. Which leads to the question. Should we be concerned that the 25th Amendment could be used for illegitimate reasons?
Pelosi introduced a bill to create a “Commission on Presidential Capacity”. Some people are concerned that, in doing so, she is acting unconstitutionally or illegitimately or worse, attempting to subvert President Trump simple because of differing ideologies. While these are all valid assumptions given the continued attempts to undermine the current presidency, it’s my belief that this is a mere publicity stunt.
It is highly unlikely that the bill would pass both the House and the Senate before the election, not to mention, be signed by the president. Further, the Vice-President, if he is able and fit, would have to be involved for the 25th Amendment to be property invoked. And we know that, VP Pence is not involved or looking to subvert the power of the presidency.
There is no clear need to invoke the 25th Amendment under the present circumstances and even if it were to be successfully used now or in the future, something tells me it would be subject to an immense amount of scrutiny, given the gravity of such a move. I don’t foresee the 25th Amendment being successfully used against any president unless the circumstances are extreme. The likelihood of immense pushback is too risky for Congress, the Vice-President and the executive offices, should the situation be questionable.
So, is Pelosi’s Presidential Capacity Commission constitutional? Sure, Congress can create a commission. It won’t do anything but if they want to create a commission, they have the ability constitutionally to do so. It’s likely better to do so if the Vice President initiates it, but it’s not violating anything at this point.
It’s merely another move in the unending game of politics and vain threats.
To conclude, I think the main point you should all take away from this article is this: when you hear people clamoring for the 25th Amendment, realize, they likely have no clue what they are talking about and don’t realize just how ambiguous it is. No one, not even our politicians, can make a concrete statement about what they should or should not do according to the 25th Amendment. And because of that, any justification using the 25th Amendment to back it, is likely to be met with resistance.
On top of which, friends, understand… politics is a game to our politicians. They want you to play it with them.
The Liberty Belle
“Perhaps the most surprising error in the amendment is an actual typo. The second time that Section 4 refers to “the principal officers of the executive departments,” it leaves the “s” off of “departments.” Congressional leaders noticed the error—apparently made by a congressional typist late in the process—but they decided not to fix it. They wanted to pass the amendment before Congress adjourned for the summer, and trying to fix the typo would have stalled the amendment’s momentum. Besides, the leaders figured that everyone would know what they really meant.” – Constitution Center