Editorial |
Eleanor Wetzel
Presidential Inability and Invocation of the 25th Amendment Trump’s presidency renewed interest in the 25th Amendment—particularly Section 4, which only has been invoked in cinematic contexts. A proliferation of op-eds in anticipation of election results, and increasingly after the New York Times 2018 anonymous editorial, have discussed the possibility of using Section 4 as an alternative to impeachment. What Does the Amendment Authorize? The first three sections are generally uncontroversial and have been tested during multiple administrations: Section 1 constitutionalizes the “Tyler precedent”1 in event of a president’s death or resignation; Section 2 authorizes the president to nominate a new vice president (VP) whenever a vacancy occurs, mirroring the post-1940 practice of presidents choosing running mates; and Section 3 addresses the voluntary transfer of presidential authority, usually short-term such as during medical procedures. Section 4, however, concerns the involuntary transfer of presidential authority; it involves a process initiated by the VP to address incapacity whereas impeachment is a political pro-
cess initiated by Congress to address criminal activity. The Amendment took effect in February 1967 and expands upon Article II, Section 1, clause 6 of the US Constitution, which simply provides that upon a president’s removal, death, resignation, or inability to complete duties, the powers “devolve on” the VP. Although the framers debated what might constitute “inability,”2 the constitutional text offers no further guidance, and the issue remained unaddressed until the passage of the 25th Amendment. What Was Tennessee’s Role? Tennessee Senator Estes Kefauver had advocated for a constitutional amendment during the Eisenhower administration. President Eisenhower was not the first president to suffer significant physical ailments in office; however, his health coupled with Cold War tension elevated concern about the country’s leadership should the president be rendered unable to execute his duties. Senator Kefauver, chair of the Judiciary Committee’s Subcommittee on Constitutional Amendments, introduced a proposal before the (continued on page 24)
FEB/MAR 2020 | NASHVILLE BAR JOURNAL
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