The 25th amendment to the Constitution is getting a bit of public attention these days. So what does the amendment do and why does it remain a hot topic, since its ratification in 1967?
In the current debate over the amendment, critics of President Donald Trump want it invoked to remove Trump from office in the on-going argument over alleged Russian involvement in the 2016 presidential election campaign. Trump supporters disagree and there are a fair number of constitutional observers who feel that isn’t the intent behind the 25th amendment.
To be sure, these political and constitutional debates will continue for some time. And there is a controversy, in constitutional terms, about the 25th amendment totally unrelated to the current public discussion about its use to remove a president from office.
The 25th amendment is a critical part of the Constitution when it comes with dealing with presidential (and vice presidential) succession and disability. It was passed by Congress in July 1965 after considerable public debate and consideration in the House and Senate. It took about 18 months for three-quarters of the states to ratify the amendment.
The Constitution as written and ratified didn’t deal clearly with who succeeds the President when the office becomes vacant, and who acts as President when the chief executive is unable to perform the job for various reasons.
The original Article II, Section 1 of the Constitution dealt with these matters, reading, “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.”
The 25th amendment gave detail and clarity to the first part of this paragraph and added an important feature that allowed the President and Congress to nominate and approved a new Vice President when that office became vacate during a presidential term. (The second part of the clause allows Congress to establish a line of succession if the President and Vice President aren’t in office and those offices are vacant.)
Since 1841, when Vice President John Tyler assumed power after William Henry Harrison’s death, there were unanswered questions about the exact role and nature of a Vice President who assumed the office of President. What became known as the Tyler Precedent held true after the deaths of six Presidents in office; the tradition was that Vice President had the full powers of the President when he assumed office.
Sections 1 & 2: Succession
Section 1 of the 25th Amendment made the Tyler Precedent a reality, stating that “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”
Another problem with Article II, Section 2 was the inability to appoint a new Vice President. Before 1967, the office of Vice President was vacant 16 times due to deaths, resignations, and assumptions of the President’s office. And in several cases, the offices of President and Vice President nearly became vacant during a presidential term.
Section 2 of the 25th Amendment allows the President and Congress to fill that position within a presidential term. “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,” it reads.
Sections 3 & 4: Disability of the President
Sections 3 and 4 deal with scenarios where the President may suffer a “inability” or “disability,” if you recall the wording of Article II, Section 1. Starting with George Washington, who had a serious health scare as President, there were cases where the chief executive may have been “unable to discharge the powers and duties of his office.” In those cases, the 25th amendment’s Section 3 allows the President to tell Congress that the Vice President can act as President until he is able to resume work.
Section 4 is the most controversial part of the 25th amendment: It allows the Vice President and either the Cabinet, or a body approved “by law” formed by Congress, to jointly agree that “the President is unable to discharge the powers and duties of his office.” In theory, this clause was designed to deal with a situation where an incapacitated President couldn’t tell Congress that the Vice President needed to act as President.
It also allows the President to protest such a decision, and for two-thirds of Congress to decide in the end if the President is unable to serve due to a condition perceived by the Vice President, and either the Cabinet or a body approved by Congress.
One controversy is over the potential use of Section 4 to remove a President from office as part of a political dispute. The other controversy is more constitutional and is related to the lack of a clear provision in Section 4 that deals with the absence of a Vice President to declare a President unable to serve. For example, during the Watergate era, there were gaps between the nominations and confirmations of Gerald Ford and Nelson Rockefeller’s appointment to the office of Vice President.
Yale scholar Akhil Reed Amar has written frequently on this subject as an Achilles Heel of the 25th amendment. “It provides no satisfactory mechanism for determining vice-presidential disability,” said Amar in a 2010 article. “Compounding the problem, if the Vice President ever were to be disabled (or if the vice presidency were at any point vacant) the Twenty-fifth Amendment’s elaborate machinery for determining presidential disability will seize up; much of the key decision making under this Amendment pivots on determinations that must be personally made by the Vice President.”
Related Podcast: Presidential succession and the 25th Amendment at 50
John Feerick, the prominent Fordham legal scholar who had a direct role in crafting the 25th amendment’s language as considered by Congress, also has written extensively on this matter. In a 2011 law review article, Feerick agreed with Amar that Congress needed to take a look at the vice presidential disability issue.
“Succession events occurring absent a functioning Vice President could create difficult scenarios, as outlined in Professor Amar’s articles,” Feerick said.
He also explained the necessity of putting the 25th amendment in place after the Kennedy assassination left Congress with a practical decision. “It was believed at the time that an amendment providing for every possible scenario would be too complex and therefore unlikely to survive the difficult congressional and state ratification processes and that a perfect solution would probably never be found,” Feerick said.
Congress, Feerick argued, could make it clear who is the next person in line to declare a presidential inability, with safeguards in place to make sure that power isn’t misused.
Scott Bomboy is the editor in chief of the National Constitution Center.