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 process 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

86th Congress (1959-1960). Although it did not pass, it was an impetus for the American Bar Association (ABA)’s study on presidential disability and advocacy for an amendment. By 1961, however, interest had waned with the election of youthful John F. Kennedy. Senator Kefauver nonetheless persisted and brought forth another resolution in June 1963. He was unable to continue pushing for its passage though as he died two months later after suffering a heart attack on the senate floor.

President Kennedy’s November 1963 assassination reignited concerns about presidential succession; thus, by the year’s end, Indiana Senator Evan Bayh—the new chair of the subcommittee—introduced amendment proposal SJ Res. 139. Despite renewed interest and passage in the Senate, the proposal was carried over to the next congressional session due to lack of action in the House. The delay benefited Senator Bayh in securing the support of the ABA, which had held a conference on “Presidential Inability and Vice Presidential Vacancy” in January 1964. Ultimately, Senator Bayh’s renewed resolution SJ Res. 1 passed the Senate in February 1965. Both Houses passed the final version by mid-summer; ratification by the requisite 38 states took almost two years; and the Amendment became operative on February 23, 1967.

How Does Section 4 Operate?

Section 4 provides that the VP immediately assumes the powers of acting president whenever he, along with a majority of either (1) “the principal officers of the executive departments” (i.e., the Cabinet) or (2) “such other body as Congress may by law provide” (no precedent but has been interpreted as a congressionally-convened panel of medical experts or others), provide written notice to the Senate president pro tempore and the House speaker that the president “is unable to discharge the powers and duties of his office.” The president

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then may challenge by self-proclaiming “that no inability exists” and resume his powers and duties—unless within four days, the VP (again with the majority of either the Cabinet or other congressionally-established body), transmits a declaration that the president “is unable to discharge the powers and duties of his office.” Should the VP do so, he retains authority for a narrow timeframe while Congress makes a determination. If Congress determines by two-thirds vote of both Houses that the president is “unable to discharge the powers and duties of his office,” the VP remains as acting president; otherwise, power reverts back to the president.

No precedent, however, exists to provide further clarification about the process. Scholars have noted that during President Ronald Reagan’s term, his aides discussed the possibility of invoking Section 4, but no formal action was taken. 6 Concerns about President Reagan’s cognition, however, led to the creation of the Commission on Presidential Disability, which in 1988, issued its Final Report. In light of the commission’s recommendations, all post-1989 presidential administrations—with the exception of the current administration—publicly confirmed development of contingency plans in case of executive inability. 7 In short, Section 4 is the most controversial and only untested section. The VP bears responsibility to initiate the proceedings where Congress serves as the referee and ultimate decision maker. 8 The questions posed by Delegate John Dickson at

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the 1787 constitutional convention, however, still remain unanswered: “What is the extent of the term ‘disability’ and “who is to be the judge of it?” 9 n

Endnotes

1 When William Harrison died during his presidency, John Tyler assumed office, asserting he was president not simply acting president.

2 Jame Ma i n, The Writing f Jame Ma i n, vol. IV (Gilliard Hunt ed., Putnam’s Sons 1900) (Aug. 27, 1787 journal entry).

3 See, e.g., Robert E. Gilbert, Presidential Disability and the Twenty-Fifth Amendment: The Difficulties Posed By Psychological Illness, 79 F r ham L. Rev. 843, 844-47 (2011).

4 See, e.g., Birch Evan Bayh, One Heart eat Away: Pre i entia Di a i ity an Succe i n (1968); Presidential Inability and Vacancies in the Office of Vice President: Hearing before S. Comm. on the Judiciary, 89th Cong. 57-63 (Jan. 29, 1965) (ABA statement).

5 Id. 6 See, e.g., Joel K. Goldstein, Taking from the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity, 79 F r ham L. Rev. 959, 979 (2011).

7 Thomas H. Neal, Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress, Congressional Research Service, at 18 (updated Nov. 2018).

8 See generally J hn D. Feerick, The Twenty-Fifth Amen ment: I t C mp ete Hi t ry An Ear ie t App icati n (2nd ed. 1992). The ABA awarded Feerick the ABA Medal in 2017 for his contributions drafting the Amendment.

9 See supra note 2.

ELEANOR WETZEL is a research attorney licensed to practice in Indiana and Tennessee. She is a Fellow of the Nashville Bar Foundation and has been an active member of the Nashville Bar Journal Editorial Committee since 2004.

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