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Understanding the 25th Amendment, a Constitutional Succession Mechanism

Recently the headlines have been full of discussion revolving around the 25th Amendment. Most of this is focused on the idea that the Amendment could be a tool to remove President Trump from office due to mental health issues. Since the 25th Amendment was adopted in July of 1965, this portion of the Amendment has never been exercised. This is no accident.

The section of the 25th Amendment in question here, the fourth of four sections, has an extremely rare and difficult implementation mechanism, similarly extreme standards before a president can be removed under the Amendment, and a very simple mechanism by which a President can assert they have been improperly removed.

The 25th Amendment allegations relating to Trump hinge on mental health allegations stemming from posts out of the President related to conspiracy theories and other aggressive behavior. At this point we have not seen much action on these allegations beyond a petition to require President Trump to undergo a psychiatric evaluation. However, we won’t really be addressing the substance of the mental health allegations against Trump too much in this article.

We’ll instead be focusing on the 25th Amendment itself, its history, its purpose, and exactly how it works. This a crucially important Constitutional Amendment, it’s important to understand exactly why it was adopted and how it works.

The Origins and History of the 25th Amendment

As mentioned, the 25th Amendment was ratified in July of 1965. This is notably only two years after JFK’s assassination in November of 1963. This is not a random correlation, the actual assassination of a sitting president led those in the Government to realize that the Constitution left the U.S. ill-prepared for the potential of a president suddenly being unable to perform their duties.

Before the 25th Amendment was adopted there was very little in the Constitution regarding the actual process of succession should a president die or be unable to perform their duties. There was an established precedent that the Vice-President would take over the duties of the president, but it was still unclear whether the VP was an acting president or actually the president. The first time the issue was raised, back in 1841, President William Henry Harrison had just died, and his VP John Tyler rushed to Washington to be sworn in. It was generally accepted that he was taking over the role of the president. However, he still received letters addressed to the Vice-President-Acting-President for his entire stint as President, much to his displeasure.

This was the accepted means of handling the matter up until the 25th Amendment was adopted. However, it created a clear issue. In 1881, the government essentially stopped all function after President Garfield was wounded in the assassination attempt that would ultimately lead to his death. The Vice President at the time refused to act in any way as president or take steps towards acting as president until Garfield had passed out of fears it would be unconstitutional. This meant there was no action in the government for months.

These were the fears in the minds of Congress when they voted to adopt the 25th Amendment, what if the assassination attempt on JFK had not instantly killed him? What if the government had ground to a halt to wait on his death or survival and there were no agreed upon constitutional means of replacing the president–temporary or otherwise. So, the 25th Amendment was born with the goal of avoiding situations where something suddenly changes, or a situation unexpectedly develops where the president is so unwell or so unfit that he is rendered incapable of performing his duties.

25th amendmentSince its adoption over half a century ago, the 25th Amendment has been invoked only six times, most notably by President Richard Nixon to replace the recently resigned Vice President Spiro Agnew. However, as we’ll see in the discussion of the exact provisions of the 25th Amendment, none of these six invocations deal with the section discussed in the media discussion regarding President Trump’s mental fitness.

How the 25th Amendment Works

While an incredibly important change, the actual function of the first three parts of the 25th Amendment are facially very simple–if not well legally explored in the courts. There are four sections, each addressing one element of the common questions about presidential and vice-presidential succession that existed prior to the Amendment.

First, section one addresses the long-held confusion that haunted Tyler for his whole presidency after the death of Harrison. Under the first section of the 25th Amendment, the vice-president officially becomes the president when a president is removed from office. This meant that Gerald Ford became president when Nixon was removed from office and in the unlikely event Trump was removed from office Mike Pence would take his place.

The second section, as discussed in the context of Nixon and Spiro Agnew above, places a requirement on the current president to nominate a replacement vice-president should the position become vacant through death, illness, or any other removal. This appointment is confirmed by a majority of the House and Senate.

Section 3 of the 25th Amendment deals with the temporary transfer of power made by the President. It allows the President to submit a written declaration declaring themselves temporarily unable to discharge their presidential duties. This declaration can later be reversed by a second written declaration which essentially says the opposite of the first.

This section of the Amendment has been used a few times, once by Ronald Reagan and twice by George W. Bush. Every time the section has been used it has transferred power to the respective Vice President while the President in question underwent surgery that had been planned.

This takes us to the section at hand, section 4, the ability of the Vice President to take steps to remove a President who is unable to fulfill his duties but cannot (for instance a situation where a President is in a coma) or will not step aside. This section has never been used, the fact that it must be initiated by a Vice President makes it a unappealing option for both political and appearance purposes.

The way it works is that the Vice President, accompanied in his message by a majority of the department secretaries such as the Department of Justice, Department of Labor and the Department of Defense, must send a message to the Speaker of the House and the President Pro Tempore of the Senate. This message must say that the President is currently incapable of fulfilling their duties.

The sending of this letter requires the support of both the Vice President and quite a few high ranking political officials appointed by the President to be removed, so you can see how unlikely this is to occur barring extreme circumstances just based on the political realities of the situation. Should the Vice President and this majority come together however, the sending of this letter immediately makes the Vice President the acting President.

This is not the end of the process. If the President doesn’t agree that he is unable to perform his duties and isn’t incapable of responding due to health issues, he can simply send his own letter to the House and Senate saying that he’s capable and this immediately reverses the whole process and restores his powers as President.

After this letter from the President, the Vice President and his majority have four days to again declare the President unfit. If they do this, Congress has 48 hours to convene and then must decide by a two-thirds majority that the President must step aside within the next 21 days. If Congress agrees with the Vice President, the Vice President once again becomes acting President. If they don’t agree, get the necessary supermajority, or fail to act within the 21 day timeline, the President stays the President.

Even after all this hullabaloo, the Vice President does not become the President–only acting President. This has very little practical difference in terms of the powers the acting President would hold. However, while the situation has never occurred, so the issue has never been legally disputed in the courts, this heavily implies that the power could be taken back for the former President if the Vice President lost his support with the majority of department secretaries or chose to simply give the power back.

When is a President Unable to Fulfill Their Duties?

You can already see how convoluted and unlikely section 4 of the 25th Amendment is to be used as a mechanism to remove any sitting President. However, the fact that it has never been used has left quite a few legal questions without a settled conclusion. Specifically, no court has ever clarified when a president ceases to be able to perform their duties.

The goal behind the Amendment would likely require something drastic and, at a minimum unexpected. The Amendment was designed to make sure the U.S. isn’t up a creek if something suddenly happens to the capabilities of a President. The most obvious example that would meet the criteria of the Amendment would be if a President was left in a coma. Anything less than that would leave the situation unclear. When it comes to mental health, it would likely require a serious mental break before it would rise to the level required for invocation of the Amendment.

What’s more, while the issue isn’t directly addressed in the Amendment itself, the goals behind the Amendment on its creation at least imply that the disability requires a certain amount of suddenness and unexpectedness. This means that any behavior that existed prior to election is unlikely to rise to the level of inability to perform duties. Despite how you may feel about the situation, the President is elected by most of the people and the ability to remove a President for traits that existed prior to election would raise some concerning implications–it could frankly set a dangerous legal precedent for the future.

This is not a blanket rule, there are certainly some things which could come to light that were unknown prior to election that could call a President’s capacity into question. However, in general the evidentiary bar to establish that a President is incapable of performing their duties is quite high and generally requires literal incapacity–either mental or physical.

Does Section 4 of the 25th Amendment Apply Here?

Section 4, quite appropriately given its topic, is incredibly difficult to invoke. The political reality is the Mike Pence is extremely unlikely–pushing the bounds of impossibility–to gather most department heads and take the actions discussed in section 4 of the 25th Amendment.  Even were this incredibly unlikely event to transpire, there is still the question of whether anything President Trump has done can rise to the level required to make him incapable of performing his duties.

This is an incredibly high bar. However, it is not a well defined legal area. Have Trump’s actions risen to the level where discussion of 25th Amendment action is warranted? I’ll leave it you to decide.

Jonathan Lurie


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