Invoking the 25th

It’s a shame that it took the horrors of yesterday to wake so many of our leaders to the need to invoke the fourth clause of the 25th Amendment. I called for it last summer, but my voice is not so loud. Today, however, the 25th is everywhere, so here’s a brief discussion of what it is, where it came from, and what it can do and has done.

Up until 1967, the Constitution provided a means of filling a vacancy in the presidency—the vice president would succeed to the office—but no way to fill a vacancy in the vice presidency. If the vice president died in office, or succeeded to the presidency, there would be no vice president until the next election chose one and he was inaugurated the following March (the date of inauguration was changed to January by the 20th Amendment, starting in 1937).

32roosevelt
Franklin Delano Roosevelt

But in the 1960s, after Franklin Roosevelt’s death in office in 1945, and John Kennedy’s assassination in 1963, there was enough public will to find a way to fill that role. This was especially true after Kennedy’s death, because the next two in line—the Speaker of the House and the president pro tempore of the Senate—were both considered to be less than completely healthy.

35kennedy
John Fitzgerald Kennedy

The 25th Amendment was written to enable a vice presidential vacancy to be filled (that’s the second section: “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.”).

At the same time, there was recognition of the fact that a president might not be dead, but still unable to execute the duties of his office. This was brought to light when Dwight Eisenhower suffered a serious heart attack that put him out of commission for a while. Eisenhower and Vice President Richard Nixon had an agreement that Nixon would take over if necessary, but that agreement wasn’t enshrined in law.

28wilson
Woodrow Wilson

And we’re pretty sure now that earlier, in 1919, Woodrow Wilson’s stroke left him completely unable to do the job. But nothing was done, except that his wife was most probably the acting president for about six months.

Thus, the third section was written, enabling the President to say “Hey, I’m having trouble doing the job. I’m going to step aside temporarily and let the Vice President act in my stead.”

The fourth section is the other side of that coin: if the President is unable to make that determination (for instance, if he’s in a coma), the Vice President—acting in concert with a majority of the Cabinet—can say “The President is unable to do the job. For the good of the country, the Vice President will serve as acting President until the President is once again able.”

The third section has been invoked several times in recent decades, but not in any terribly dramatic fashion:

DA-SC-90-03096
Ronald W. Reagan

On July 12, 1985, President Ronald Reagan underwent a colonoscopy and was diagnosed with bowel cancer. He elected to have the lesion removed immediately. On July 13, Reagan signed a letter before going under general anesthesia, and Vice President George H.W. Bush was acting president from 11:28 a.m. until 7:22 p.m., when Reagan transmitted a followup letter declaring himself able to resume his duties.

41bush
George H.W. Bush

On June 29, 2002, President George W. Bush invoked Section 3 and temporarily transferred his powers to Vice President Dick Cheney before undergoing a colonoscopy, which began at 7:09 a.m. Bush awoke about forty minutes later but did not resume his presidential powers until 9:24 a.m., to ensure any aftereffects had cleared.

43bush
George W. Bush

On July 21, 2007, Bush again invoked Section 3 before another colonoscopy. Cheney was acting president from 7:16 a.m. to 9:21 a.m.

46cheney
Dick Cheney

In all three cases, the acting President didn’t do anything other than carry out his usual duties.

Perhaps the clearest instance when section 4 should have been invoked was on March 30, 1981, when Reagan was shot and rushed into emergency surgery without time to sign a letter under section 3. Vice President Bush did not assume the presidential powers and duties as acting president because he was rushed back to Washington via airplane, and Reagan was out of surgery by the time Bush landed in Washington.

Sections 3 and 4 get far more play in fiction. They were notable in a two-episode arc of The West Wing, and as a poorly executed subplot in the movie Air Force One.

By the way, there’s also the first section of the Amendment, which clarifies something that had been less-than-clear

Clause Six of Article II of the Constitution says that if the President dies or is unable “to discharge the powers and duties” of the presidency, “the same shall devolve on the Vice President.” That left open the question of whether a succeeding Vice President became the President, or was merely acting as President. John Tyler, the first Vice President to be faced with that situation, insisted that he was the President, and through force of will, made that determination stick. But still, it wasn’t entirely clear until the 25th Amendment was adopted. The first section reads “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”

Section 3: Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4: Whenever 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, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The 25th Amendment was adopted by the 89th Congress in 1965, submitted to the states on July 6 of that year, and was adopted (ratified by 38 states) on February 10, 1967. To date, it has been ratified by 47 states (all but Georgia, North Dakota, and South Carolina).

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One thought on “Invoking the 25th

  1. Just heard the Press Secretary’s statement (see the link). It makes me wonder if Donald Trump is no longer acting as president. Note her introduction: she’s speaking for the staff, the people working in the White House. He may have stepped down without doing so formally.

    https://www.msn.com/en-us/news/politics/kayleigh-mcenany-issues-two-minute-statement-on-capitol-riot-leaves-without-taking-questions/ar-BB1cyS2F?ocid=mailsignout&li=BBnb7Kz

    Like

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