The 25th Amendment - Liberal Resistance

The 25th Amendment

William B. Turner

In these days of variously incompetent and grossly illegal, immoral presidential leadership, many people hope to see the current president leave office before his term ends.

One way to remove a president from office is the impeachment process, which the Founders wrote into the original Constitution, and which we have initiated three times. Andrew Johnson underwent impeachment and trial in the Senate in 1868, but escaped conviction and removal by one vote. Richard Nixon resigned from office in August 1974, shortly after the House Judiciary Committee voted out articles of impeachment upon release of transcripts showing that he had discussed using the CIA to stop the FBI’s investigation of the break in at the Watergate hotel, which operatives for Nixon’s reelection campaign had performed. Finally, in 1998, the House of Representatives voted to impeach President Bill Clinton for perjury and obstruction of justice after he lied to investigators about his extramarital affair with Monica Lewinsky. Clinton escaped conviction in the Senate by much larger margins than did Johnson.

But there is another way to rescind from a sitting president the powers of the office: The Twenty-fifth Amendment. This Amendment is a bit of a mess, at least with respect to the issue we are currently concerned about, namely stopping the incumbent of the moment from continuing to exercise the powers of the presidency.

The impetus for the Twenty-fifth Amendment was a somewhat manufactured problem that arose when John F. Kennedy died in November 1963. Vice President Lyndon Johnson took the oath of office before Kennedy’s body was cold, as had been the practice seven times before, since 1841, when William Henry Harrison became the first president to die in office. Perhaps because of the anxiety of the Cold War, the nation’s leaders saw the need to codify this process, so they proposed in 1965, and the requisite number of states ratified in 1967, the Twenty-fifth Amendment, which has four sections.

Section one simply states, “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”

Section two states, “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.” Richard Nixon invoked this provision to name Gerald Ford his second Vice President after his first one, Spiro Agnew, resigned because of his own scandal.

Section three allows the president to notify the Speaker of the House of Representatives and the President pro tem of the Senate of his incapacity to discharge the responsibilities of the office, then to notify them that he is again able to discharge those responsibilities if some circumstance so requires. During the period of incapacity, the Vice President serves as “Acting President.” Ronald Reagan notified the two appropriate officials in July 1985 of his inability to discharge the powers of the office. Whist this can be debated as an overall comment on Reagan, in this instance it because he was undergoing surgery. George H.W. Bush thus served as “Acting President” for roughly eight hours on that date. The Chief of Staff, the White House counsel, and Reagan’s doctor witnessed President Reagan signing the letter resuming the powers of the presidency.

Section four is the one we care about. It is similar to section three in that it allows for notice to the Speaker of the House and the President pro tem of the Senate that the president is incapable of “discharg[ing] the powers and duties of the office,” the Vice President becoming “Acting President.” The important difference is that it 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 make this declaration. Congress has created no body to make this declaration, so at the moment, only a majority of the cabinet may make the declaration, with the Vice President.

The Amendment then goes on to allow the President to notify the relevant officials that no disability exists, in which case he resumes the “powers and duties” of the presidency. UNLESS, within four days, the Vice President and a majority of cabinet officers again notify the relevant officials that the president is incapable of performing the duties of the job. In that instance, within twenty-one days, Congress gets to decide. If they concur, by two-thirds vote in both Houses, that the president is unfit, then the vice president continues as “acting president.” If not, then the president resumes the powers of the office.

Okay, admit it, you enjoy the prospect of Trump and Pence duking it out in front of Congress over Trump’s competence to serve as president.

The problem with this Amendment is that it nowhere defines “Acting President.” From the context, it seems clear that it means that the “Acting President” gets to exercise all of the “powers and duties” of the president – signing bills into law, appointing executive branch officials, pardoning turkeys, launching nuclear weapons, invading countries – that and all of the other huge array of powers the president has. But apparently the “not Acting President,” the guy who originally held the office, gets to hang around. In some ways this is trivial – does the “not Acting President” get to continue living in the White House? Does he get to continue flying in Air Force One? Does the Secret Service still give him presidential levels of protection?

But, with Trump and Pence, given their somewhat… “complicated” history, and Trump’s oversized ego, this could actually pose a significant problem. If Pence convinces a majority of the cabinet to take Trump out, Trump will likely be pissed. I can see no reason to think he would take such an insult gracefully, or think of the best interests of the country and quietly retreat to New York City to get the hell out of the way. The man sometimes speaks as if he thinks members of Congress work for him, so it’s hard to imagine that he would willingly accept their determination that he is not fit to hold the office.

So there is the important uncertainty of what exactly it would mean to have Vice President Pence as “Acting President,” but that still seems preferable to the certainty of having Trump continue to be a disaster as president.