The Twenty-Fifth Amendment

The Twenty-Fifth Amendment may look like a model of constitutional clarity. It lays out a series of technical solutions to problems that had emerged over the years in the area of presidential and vice-presidential succession. Compared to many other constitutional provisions, the language seems crisp, straightforward, and decisive.

On closer inspection, however, the clarity of the Twenty-Fifth Amendment fades—at least with regard to its lengthiest and most controversial component, Section 4. This Section allows “the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” to declare that the President is “unable to discharge the powers and duties of [the] office.” Thereafter, depending on how the President and Congress react, it allows the Vice President to take over as Acting President. Section 4 has not yet been used. If and when that day comes, it may bring to the surface a number of lurking interpretive issues, on top of the critical issue noted in Professor Kalt’s statement of whether the President would retake power immediately upon declaring herself able to serve.

For instance, what exactly are the “executive departments” referred to in Section 4? The Supreme Court has suggested that the Twenty-Fifth Amendment “strictly limits the term ‘department’ to those departments named in 5 U.S.C. § 101.” Freytag v. Commissioner (1991). But the Amendment itself says no such thing, and supporters of the Amendment in Congress expressed different views.

Relatedly, who are the “principal officers” of these departments? The Supreme Court has said that, under the Constitution’s Appointments Clause, principal officers are “selected by the President with the advice and consent of the Senate.” Buckley v. Valeo (1976). Hundreds of executive branch employees are now selected in this manner. Supporters of the Twenty-Fifth Amendment generally asserted that only Cabinet members ought to count as principal officers under Section 4. But even accepting that assertion, they did not reach consensus on what to do with Cabinet members serving in an “acting” (rather than Senate-confirmed) capacity, or with individuals like the U.S. Trade Representative who participate in the Cabinet without heading executive departments.

Most pointedly, what does it mean for a President to be “unable” to discharge her responsibilities? Presidential “inability” is the key concept in Section 4; its invocation has the potential to destabilize the entire political system. And yet this term is nowhere defined in the Twenty-Fifth Amendment or anywhere else in the Constitution.

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.

At the same time that it fails to iron out some important issues, the Twenty-Fifth Amendment fails to address other matters entirely. For instance, as Professor Kalt’s statement explains, even as it makes the Vice President the central actor in the Section 4 drama, the Amendment does not establish any process for determining vice-presidential inability. Nor does it give any guidance on situations where both the President and Vice President have developed inabilities.

In short, while the Twenty-Fifth Amendment supplies a sensible framework for removing a President who can’t do the job, numerous details remain to be filled in. This observation is notable in its own right, as it suggests that controversies over Section 4’s application will trigger debates not only about the President’s condition but also about the meaning of the Constitution. Beyond the Twenty-Fifth Amendment, the observation also points to some broader lessons concerning constitutional interpretation.

First, it helps demonstrate why vague terms and substantive gaps are so common in the Constitution’s text. Even when they set out to address a fairly concrete problem, constitutional drafters often find it infeasible—and undesirable—to give a precise answer because of the limits of foresight, the limits of language, and the difficulty of reaching agreement on particulars. Supplying general principles or procedures is often the best that can be done. As a result, future decision-makers are given a great deal of leeway to determine how the Constitution best applies to the circumstances they face.

Second, the interpretive puzzles raised by Section 4 underscore the importance of historical practice in constitutional law. Part of the reason why these puzzles persist is that we have not experienced Section 4 in action—and we therefore lack precedents to discipline legal analysis, generate shared understandings, and narrow the scope of discretion. One might expect that a constitutional amendment as recent as the Twenty-Fifth would be easier to apply than a provision adopted centuries ago, but the very novelty of Section 4 has prevented its meaning from becoming at all settled.

The one place in American life where Section 4 has been used repeatedly is in movies, novels, and television shows, and this suggests a final lesson. On popular TV series such as 24 and House of Cards and in thrillers such as The Enemy Within, Section 4 has been at the center of elaborate plots to steal the presidency. If, as some scholars have argued, the more realistic risk is that Vice Presidents and Cabinet officers will be too timid about calling out presidential inability when it exists, these associations of Section 4 with Machiavellian maneuvering are unhelpful. Those who wish to invigorate the Twenty-Fifth Amendment’s involuntary removal mechanism do not necessarily need to change constitutional law, but they may need to change constitutional culture.

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.

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.