The 25th Amendment to the United States Constitution: An Overview

If you’re here looking for information about Donald Trump and the 25^th Amendment, you should skip to the discussion of Section 4, below.

The 25^th Amendment

The 25^th Amendment is one of the best-written amendments to the United States Constitution. It is well-structured, carefully crafted, and well thought-out. Built to cover a number of unusual circumstances, the 25^th Amendment’s range of provisions codify a common-sense precedent in American law, allow for filling vacancies in the office of the Vice President, and most tantalizingly, provide for the temporary removal of the President with his concurrence (yes, really!), or against his will.

The amendment is cleanly broken down into four discrete sections, and we’ll discuss each of them in turn.

Section 1—The Tyler Precedent

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

It might be the most common-sense government question you’ve ever been asked, but what happens when a President dies in office, resigns or is removed by impeachment? If you say the Vice President takes over, you’re right—but that’s only technically true because of this 1960s amendment. Before then, Vice Presidents did indeed ascend to the Presidency when there was a vacancy in the office, but the Constitutional mandate for such a maneuver is unclear. Worse, the Constitution as originally written provided no provisions for a President to step aside temporarily (or be set aside temporarily) in the case of debilitating illness or other inability.

It first occurred after the longest inaugural speech in American history. William Henry Harrison, the hero of a battle called Tippiecanoe had been elected on the campaign slogan, Tippiecanoe and Tyler, Too! As the legend goes, drawing on his military discipline, Harrison gave an epic two-hour, 8,445-word speech, despite the cold March rain. Thirty-one days later, he was dead,[1] and the America that voted for the hero of Tippiecanoe was suddenly stuck with Tyler, Too.

Aware that many observers expected Tyler to be the “Acting President” and attempt to implement Harrison’s views as closely as possible, Tyler set the bold precedent of not only taking the oath of office, but giving an inaugural address. He subsequently used the veto power aggressively to demonstrate that he, not his party, was President.

Tyler’s Presidency is mainly significant because of the “Tyler Precedent,” as his efforts at legislative successes were stymied by an increasingly hostile party that saw him as betraying his loyalty to Harrison. Dismissed as “His Accidency” by his enemies, and seen as a traitor by his Whig friends, he quickly became a “lame duck” President with little or no power to sway others.

Subsequent Vice Presidents follows “The Tyler Precedent,” which is probably what the Constitution envisioned. (The text calls for “the powers and duties of the Office” of the Presidency to “devolve” upon the Vice President in Article II, Section 1, but scholars have debated whether the powers and duties of the Presidency descended upon the Vice President as “Acting President,” or the actual office).

But Section 1 makes it explicitly clear, and resolves all doubt for all time: no matter how a President falls from office, it is the Vice President who becomes President.

Section 2—The Ford Rule

Section 2. 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.

The Constitution’s silence on Presidential vacancy also led to the problem of vacant Vice Presidencies. When a VP took over for the President, how could another VP be selected? Unlike all other elective offices, no provision was made for an interim VP to be appointed by a state’s governor (or by the President), and unlike appointive offices, the President could not nominate, nor the Senate confirm after advice and consent, a new VP.

As a result, the Vice Presidency sat vacant for a total of 37 years between 1789 and 1965.[2] This second section of the 25^th Amendment fixed this problem, providing for a VP to be nominated by the President and confirmed by a majority vote of both houses of Congress. Here we find some of the first divergences of the 25^th Amendment from similarly-situated Constitutional practices. First, both houses of Congress are called on to weigh in. Second, the Vice President ascends to the office upon confirmation, not upon the President’s appointment.[3]

I call this the Ford Rule—and I’m probably the only person calling it this, so don’t put that on your history test or anything—simply because it was first used (and really even designed for) President Gerald Ford, a congressman selected by Richard Nixon to replace his disgraced Vice President Spiro Agnew. When Agnew resigned amid scandal (ominously foreshadowing Nixon’s own impending fall from grace), Ford was tapped to replace him. Ford was rigorously examined by the Senate, followed by his own colleagues in the House, who ultimately voted to approve him as the next Vice President. Less than a year after becoming the first Vice President to ascend to his office under Section 2 of the 25^th Amendment, he became the first to ascend to the Presidency under Section 1 of the amendment. He then nominated Nelson Rockefeller, who faced a blistering set of confirmation hearings, but ultimately ascended to the Vice Presidency as well. Within eight years of the passage of the 25^th Amendment, it’s first two sections had already been invoked three times.

Section 3—Voluntary, Temporary Presidential Removal

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 3 is where we get to the fun stuff; can a President voluntarily and temporarily step aside from his office? More concerning than the question of Vice Presidential ascension to the office resolved by Section 1 were the nightmare scenarios—some of which nearly happened in our nation’s history. What if John Wilkes Booth had successfully captured President Lincoln, as he apparently intended to do initially, or if FDR’s stroke had left him debilitated instead of dead? Could the President set himself aside in favor of the Vice President? Could a Vice President set the President aside for the good of the country while the President was in a coma?

In some sense, this is a problem precisely because of the nature of a government of limited powers, and a Presidency of expansive powers over foreign affairs. The Founders vested the Presidency with enormous power to wield the bully pulpit, the executive pen, and most importantly, to deal with foreign nations as our Chief Diplomat and Commander-in-Chief. Designed to be the counterpart of Kings and Dictators the world over, the President is clothed by the people for four years at a time (and never for more than ten years thanks to the 22^nd Amendment[4]) with extraordinary, broad and—here’s the kicker—exclusive powers over foreign affairs. The President can move troops and even order military strikes on his own initiative[5]—and no one else can.

So what happens when the President is sick? In surgery? Unavailable? Kidnapped? Crazy? Suffering from early-onset dementia? What happens if his daughter is kidnapped, or his son is killed by militants in another country? In these cases, we need a way to establish who can make “the call” to respond to a nuclear attack, to respond to terrorism, to move troops toward an ally’s combat zone, and for 1,000 other reasons not related to foreign affairs.

President Truman called for a solution when he ascended into the Presidency, realizing how close the nation had come to a vegetable President during a world-wide war. And only a few years before the passage of the 25^th Amendment, the nation was again reminded of the precariousness of the existing Constitutional provisions when President Kennedy was within inches of being rendered brain dead rather than killed by an assassin’s bullet. Clearly, it was time for a solution.

The President May Step Aside

Under Section 3, the President, by transmitting a “written declaration” of his inability to discharge the “powers and duties” of the office of the Presidency to the Speaker of the House and the President Pro Tempore of the Senate. Thereafter, he may resume power by transmitting a written declaration that the inability has been removed.

Some argue that the President could not invoke this power absent an “inability.” In other words, if the President simply wants time off, it is questionable whether he could invoke this clause, as the text requires an inability to perform his office. This might be a closer call in the case of a serious bought of the flu that rendered the President unable to move much or think about complex issues.

There is no time limit on the withdrawal from power, and the withdrawal could be permanent; but this is not a “resignation.” That is, the President can always step back into power—without permission or approval from anyone—by transmitting his declaration of fitness to the Speaker and President Pro Tem.

Historical Invocations of Section 3

Section 3 has been invoked three times, each time in the case of a prostate exam, and each time involving a Bush.

The first invocation—and of course this is debated because why not—occurred when President Reagan was undergoing a prostate exam. Because he would be going under anesthesia for an operation, the last Cold War President was concerned that someone hold the reigns of power in his absence. After consulting with Future Chief Justice John Roberts—then a mere attorney in the bowels of the executive branch—President Reagan carefully crafted a curious statement explicitly denying that he was invoking Section 3 of the 25^th Amendment, declaring what was required under Section 3 of the 25^th Amendment, and transmitting it to the officers named in Section 3 of the 25^th Amendment. Apparently concerned that future Presidents not be bound to so invoke the amendment when heading into surgery, Reagan went to great lengths to aver that this was not what it appeared to be, and what most historians and scholars now agree it was—an invocation of Section 3 of the 25^th Amendment. President George H.W. Bush took over as “Acting President” for a few hours.

President George W. Bush would invoke this section twice—both for prostate exams. He had fewer concerns about the precedent the amendment would set (by that time, nearly 40 years had passed since the amendment’s passage, and perhaps he felt less uncomfortable with the whole thing). All three times, the Acting President took over with little or no fanfare, and handed back the reins of power upon the President’s written declaration of his ability.

Section 3 on TV

Section 3 makes for good TV fodder. Most dramatically, this was illustrated in The West Wing’s episode Twenty-Five, when the fictional President Bartlett invokes this provision after the kidnapping of his daughter. Concerned that his judgment will be compromised, the ever-noble President Bartlett tells Leo McGarry that he will invoke the amendment and step aside until the crisis is averted. The President’s political rival, who is Speaker of the House, takes over as Acting President during the crisis (the Vice Presidency is still vacant from a recent resignation in this episode).

While I appreciate the effort at interpreting this provision, The West Wing gets it wrong on a few key points. First, the President does not “need” to have the concurrence of his Cabinet when invoking Section 3. The scene where the President goes to the Cabinet and tells them that he doesn’t need their unanimity, but he wants it is entirely unnecessary. The Cabinet isn’t involved at all. Second, an “Acting President” who assumes the power of the office temporarily is not remembered as an ex-President.[6] Rather, he acts as President temporarily until the “real” President is able to return to duty.[7] Finally, there is debate over whether a Speaker of the House called upon to step in would need to (or could) resign from the House. Would he still be eligible to serve as President?

All in all, however, The West Wing offers an interesting look at how the mechanics of a Presidential invocation of Section 3 would look in a crisis.

Section 4—Involuntary, Temporary Presidential Removal

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.

And yes, this is the juicy part. For every movie plot involving Section 3, Section 4 has more. It’s basically a coup, after all! We can overthrow a sitting President against his will!

Recognizing that such a dramatic move by the Vice President and Cabinet would be under the most extraordinary of circumstances, the amendment’s framers gave the Congress a limited time to respond. Within twenty-one days of assembling,[8] both houses of Congress must vote by a two-thirds majority to temporarily remove the President in favor of the Vice President due to Presidential inability.

The framers of this Amendment thought it unlikely that a Vice President would act except where he was sure he had the support, and it seems unlikely that Congress would need twenty-one days to act where a Vice President and the majority of a Cabinet thought the issue was clear enough to completely breach their relationship with the President.

“Inability” remains strategically undefined in the amendment in both Sections 3 and 4, and thus will likely be left up to Congressional discretion in the unlikely event this provision is ever invoked. The Supreme Court has already ruled that it will not reconsider the proper method of impeachment under the “Political Question Doctrine,” and the same outcome would be likely to occur here.[9] Thus, the Congress would be the end of the line on this decision.

If the Vice President, Cabinet and Congress ever took this extraordinary step against the President’s will, it is likely that this removal would be permanent, even though it is temporary by its terms. A President in this situation would be so weakened politically that he would be unlikely to be reinstated.

Historical Invocations of Section 4

To begin with, there aren’t any historical invocations of Section 4 to date. However, many scholars—and the amendment’s framer—argue it should have been invoked at the attempted assassination of President Reagan. Reagan’s Vice President and Cabinet were cautious not to alarm the nation, nor to tip off the Soviets to how serious the President’s condition was after his shooting.

This leads to an important point. There are serious disagreements over how casual the invocation of Sections 3 and 4 should be. Some argue this amendment was designed to be used somewhat liberally. If the President is going under anesthesia, or will be unavailable for a few hours for any reason, these scholars believe the amendment should be invoked.

Others see even the temporary transfer of power to the Vice President (or the next in line) as a last resort, an action that should only be taken with extreme care. The fear of tipping off America’s enemies to a Presidential weakness is imprudent, and the messy transition between President and Acting President could cause confusion or outright chaos.

President Reagan and his administration came into power when the amendment was young, and had the unenviable task of putting the Amendment into operation for the first time. Their reticence to invoke it shows a general apprehension of laying down the rules that subsequent administrations would be bound by. Today, in a similar situation, it is more likely that Section 4 would be invoked.

Section 4 in Fiction

This section’s presentation is almost correct in Lockdown, a film where the American President’s daughter is caught amidst a space prison mutiny. At a key moment, the Vice President asks the President to give the order to make a risky maneuver that might result in the death of his daughter. The President refuses. Without skipping a beat, the Vice President reluctantly presents to the President an iPad with the approval of the house and senate, and the Vice President gives the orders as the President begs him to reconsider.

Not bad, but not quite right either. In reality, the terms of the Amendment require that the Vice President first invoke the section with the majority of the Cabinet; then, if the President contests (as is the case in this film), then it goes to the Congress, with the President presumably able to present his case. It is unlikely, and indeed, against the spirit (if not the text) of the Amendment for this to occur without the public (or the President) knowing. Finally, once the Amendment is invoked, if Congress has acted, the President cannot act until he is restored. Thus, the VP wouldn’t be trying one last time to persuade the President to act—the VP would have to give the order as Acting President.

President Trump and the Twenty-Fifth Amendment

All this brings us to President Trump, who has faced an unusual number of calls for the invocation of this provision. Every President has had someone call for his impeachment. It’s practically an inviolable rule of American Political Life that a sizable portion of the population—and frequently a majority—will disapprove of the President at any given time. The calls for impeachment occur every four years as soon as the President swears the oath, but the political hurdles are enormous, and technically impeachment should only be invoked for “high crimes and misdemeanors.”

The 25^th Amendment provides both a lower reward to those seeking to remove a President (the removal, by its terms, is temporary), and sets an even higher bar to removal. While Article I, sections 2 and 3 only require a majority of the house (and then 2/3 of the Senate), Section 4 of the 25^th Amendment requires a higher threshold in the house, the same threshold in the Senate, and all this only after the initial concurrence of the Vice President and a Cabinet majority. Such a provision is unlikely to be invoked, even in the most exceptional of circumstances.

And isn’t that the point? In our republic, We the People choose, but then we insulate our choices from the people so our elected representatives can govern according to their own discretion and conscience. At each election, we should choose our President wisely, because once we choose, it’s almost impossible to remove him.

Conclusion: Birch Bayh—an Unsung Constitutional Hero

I hope that one day there will be a statue to Senator Birch Bayh, Jr.,[10] erected in his hometown in Indiana, or maybe in Dealey Plaza in Dallas where his nightmare vision nearly became reality; or perhaps he could have a painting in the East Room of the White House where Richard Nixon first nominated a Vice President who would be the first to follow the provisions of the Amendment.

Bayh’s Constitutional contribution might seem picky and technical, but the only non-founding father to draft two Constitutional amendments succeeded in putting together a coalition in a surprisingly contentious debate to pass a Constitutional amendment that was desperately needed. The 25^th Amendment’s latter provisions will rarely be invoked, but their very existence provides the promise of stability to the American people, no matter how unusual the circumstances that may occur. While one can nitpick with certain provisions, and while typos are always regrettable,[11] the 25^th Amendment reflects foresight, wisdom and outstanding draftsmanship. Birch Bayh, by authoring this provision and fighting for its passage gave our government a safety net and a provision for securing our Constitutional form of government in an uncertain age. For this, he deserves our gratitude.

Joel Ready is an attorney at the Cornerstone Law Firm. He can be reached by email.

[1] It’s unlikely that the cold that killed him was related to his blustery speech on a blustery day, as the cold arose three weeks later. But let’s be honest, it makes for a much better story.

[2] Feerick, J. D. (1992). The Twenty-Fifth Amendment; Its Complete History and Applications. New York, NY: Fordham University Press.

[3] Although this is more of a technicality, the President could choose not to appoint Supreme Court Justices and other appointed offices even after the Senate confirms his nomination. This has happened very rarely in American history, but usually due to death of the person confirmed before the formal appointment.

[4] Although, technically a President who is “termed out” can come back for another round.

[5] Some argue that modern President exceed their war powers regularly. While Congress is given the exclusive power to declare war and to fund the military, the President is given all authority as “Commander-in-Chief of the Armed Forces,” and this power has been used all the way back to President Washington for various war-making powers without the consent of Congress.

[6] In one particularly regrettable episode, former Speaker Glen Walker joins a crew of former Presidents aboard Air Force one as though he’s just one of the gang, and is addressed as “Mr. President” along with the other former Presidents. Elsewhere, they talk of giving him a Presidential portrait.

[7] As further proof that this is correct, no one considers former Vice President Cheney to be the 44^th President because he served for a few hours.

[8] The Congress is given two days to assemble if not in session.

[9] In Nixon v. United States, 506 U.S. 224 (1993), the Supreme Court of the United States ruled that impeachment by the Senate is unreviewable in Federal Court.

[10] His last name is pronounced “Buy.”

[11] At least English teachers can get in on Constitutional discussion now, too.

 

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