The Twenty-Fifth Amendment is unusual. Most amendments are about individual rights or governmental powers; the Twenty-Fifth is one of a small number of amendments about technical procedures. This essay will discuss why such amendments are so unusual, how the Twenty-Fifth Amendment was able to break that pattern, and how technical amendments like the Twenty-Fifth are susceptible to errors and omissions.
The U.S. Constitution is one of the most difficult constitutions in the world to amend. It is hard to get two-thirds of the House, two-thirds of the Senate, and three-quarters of the states’ legislatures to agree on something. But the really hard part of passing an amendment is getting Congress to deal with it in the first place.
Being a good idea is not enough to make something happen in Congress. Congress has limited space on its agenda, and typically it takes action only when doing so serves the interests of politically powerful constituencies. There must be something in it for them.
This is what makes the Twenty-Fifth Amendment so special. It was not a response to a surging political movement, and its terms were not directed at preventing a repeat of some recent disaster. It was just a good idea whose time had come. Other than portions of the Twentieth Amendment, no other amendment came into the Constitution so much on its own intellectual merits.
How did it happen, then? There were three important factors. First, on presidential disability, the impetus for change came from the White House. In Congress, hundreds of representatives and senators each consider hundreds of issues and balance the interests of hundreds of clamoring interest groups. By contrast, when President Eisenhower suffered his serious health issues, he was just one man presented with one very stark reality: if he ever got really sick, the Constitution would not handle it well. This was particularly problematic in the middle of the Cold War. It was time for a change, and Eisenhower’s subsequent efforts at reform got the ball rolling.
Second, the shocking assassination of President Kennedy in November 1963 created a brief window of opportunity, during which the nation was more inclined than usual to look at issues outside of the usual interest-group politics. It was a rare opportunity to focus the country’s attention on issues of presidential and vice-presidential vacancies, and presidential disability.
Third, and probably most important, was the extraordinary leadership of Senator Birch Bayh. Shortly before the Kennedy assassination, Bayh—then in his first year in the Senate—became chairman of the House Judiciary Committee’s sleepy Subcommittee on Constitutional Amendments. The subcommittee had already been considering these issues, but Bayh committed energy and political capital to making the project a high congressional priority. Unusually, he did this despite the lack of an obvious, immediate political payoff.
Although the Twenty-Fifth Amendment had all of these things going for it, other factors caused it to be less-than-perfect; the Amendment has several errors and omissions in it. These imperfections show some of the pitfalls of enacting technical amendments.
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.
A very different sort of imperfection is incompleteness. The framers of the Twenty-Fifth Amendment made a conscious choice to leave some things unaddressed. One is vice-presidential disability. Section 2 only provides for filling vice-presidential vacancies; it does nothing about a situation in which a Vice President is only incapacitated. Also, in Section 4, nothing can be done to transfer power away from a disabled President if the Vice President is disabled too, or if the vice presidency is vacant. The Amendment’s Framers were aware of these gaps and considered addressing them, but decided not to because the Amendment was already so long and complicated. There are an infinite number of “what ifs” and they had to draw the line somewhere. If Congress only took final action on provisions that were complete and perfect, it would never act.
This essay is part of a discussion about the Twenty-Fifth Amendment with David Pozen, Professor of Law at Columbia Law School. Read the full discussion here.
Perhaps the most problematic imperfection in the Twenty-Fifth Amendment is a poorly drafted part of Section 4. Recall that when the Vice President and Cabinet declare a President to be disabled, the Vice President immediately takes over as Acting President. If and when the President responds that he is not disabled, Section 4 says that “he shall resume the powers and duties of his office unless the Vice President and a majority of [the Cabinet] transmit within four days . . . their written declaration that the President is unable to discharge the powers and duties of his office,” which sends the question to Congress to settle. Several commentators reading this provision have casually assumed that the President would retake power immediately, and would be sidelined again if the Vice President and Cabinet re-declared that he is disabled within four days.
That reading is wrong. The Vice President continues as Acting President during the four-day waiting period, and the President does not take power back until it is over. This is clear from the text: though it could have been written more precisely, it does say “unless,” not “until and unless.” It is even clearer from the legislative history of the provision. But in the heat of a power struggle between an allegedly disabled President and his Vice President, a defiant President would have every incentive to read Section 4 as giving him back his power immediately, and little reason to research the legislative history. He might even purport to fire his disloyal Cabinet, to prevent them from re-declaring his disability, and name loyalists as acting Cabinet members. Ideally, Congress—or if not, then the courts—would step in and settle the matter very quickly, but if there were two people claiming to control the presidency and two sets of people claiming to be the Cabinet, a lot of damage could be done in a very short time.
But a completely perfect version of the Twenty-Fifth Amendment would have been much more difficult—if not impossible—to construct. Errors, gaps, and awkwardness aside, the Twenty-Fifth Amendment represents a massive improvement over the original Constitution’s treatment of presidential and vice-presidential vacancies and presidential disability. As a purely technical and procedural provision, there really is no other amendment like it.
Brian C. Kalt Professor of Law and The Harold Norris Faculty Scholar at Michigan State University College Of Law