Misunderstandings about the 25th Amendment
- 11 hours ago
- 5 min read
John C. Wohlstetter
The recent attempted assassination of President Trump raises anew questions surrounding presidential succession. Prominent political and media figures (names withheld to protect the guilty) have cited Amendment XXV of the United States Constitution, ratified in 1967, as a vehicle to permanently remove presidents from office, given insanity or other forms of diminished cognition. This comports with common sense. After all, who in their right mind would accept such presidents sitting in the Oval Office?
Most of those present at the amendment’s creation supported it: former president Lyndon B. Johnson (1963-69), plus 68 senators and 368 House members (versus five senators and 29 House members dissenting) whose votes sent the amendment to the states for ratification. Add to that voters in the 47 states that voted to ratify it. (Georgia, North Dakota and South Carolina voted against ratification.)
Historical antecedents
At the 1787 Grand Convention, the Framers had little to say about presidential inability, being preoccupied with foundational choices: allocating powers among the three branches of the federal government; which powers would be reserved to the states; and how to amend and ratify the Constitution. Near the end of the convention, Delaware delegate John Dickinson posed a compound question: “What is the extent of the term disability, and who is to be the judge of it?”
Article II, section 1, clause 6 of the Constitution provided that in the event of the removal of a president due to death, resignation, or inability to discharge the powers and duties of the office, the vice-president becomes president. If both the president and vice-president are unable, Congress would decide who would act as president until the disability was removed or a new president was elected. The current presidential succession statute, passed in 1947, places the House Speaker first in line, then the Senate president pro tem, followed by the president’s cabinet, in the chronological order that those departments were created.
Structure and purpose
The amendment has four sections. Section 1 provides that in the event of a presidential vacancy, the vice-president becomes president. This creates a vacancy in the vice-presidency. Section 2 requires the new president to nominate a new vice-president, who takes office upon confirmation by majority votes in the House and Senate. Section 3 covers a president’s voluntary declaration of inability, in which case the vice-president acts as president until the president declares that the inability has ended.
These three sections have already been tested. Section 2 was first invoked in 1973: Republican vice-president Spiro Agnew resigned, and President Richard Nixon nominated Representative Gerald Ford (R-Mi.). Per Section 1, when Nixon resigned in 1974, he was replaced by Ford, who (per Section 2) promptly nominated former New York State governor Nelson Rockefeller as his successor vice-president. Section 3 was first publicly invoked by former President George W. Bush in 2002 and 2007, when he underwent colonoscopies; former President Biden did the same in 2021. After President Ronald Reagan was shot, this section was informally observed but never invoked for fear that our allies might panic or seek advantage during the president’s convalescence.
Section 4 has yet to be invoked, and for several reasons its use is likely to be a rare event. Let’s unpack its highlights.
(A) Whenever the vice-president and a majority of the cabinet, or of such other body as Congress shall by law provide, transmit a written declaration to both Houses of Congress that the president is unable to discharge the powers and duties of the office, the vice-president takes over and acts as president.
(B) Whenever the president notifies both Houses that he is ready to again discharge the powers and duties of the presidency, he is restored to active status unless both Houses, by a two-thirds vote, find that the president remains unable to regain the powers and duties of the office.
(C) Section B sets forth several time periods and notification requirements pertaining to when and how these decisions are implemented.
(D) However, Section B does not limit the number of times a president can request a return to active status.
Three important points
First, whereas Sections 1 and 2 refer to “the president,” Sections 3 and 4 state that the vice-president becomes “acting president.” An acting president assumes the powers and duties of the presidency but does not hold the office. This is necessary because if the vice-president ascends to the office of the presidency, a sidelined president cannot resume being president. Also, a vice-president who becomes president must nominate a new vice-president. This would prevent a sidelined president whose disability has ended from returning to office.
Second, there is no reference whatsoever to permanent removal of the president. The text of the Constitution provides elsewhere for such removal. Per Article I, the House has the sole power to impeach officials for treason, bribery, or other “high crimes and misdemeanors.” The Senate has the sole power to try impeachments, with conviction requiring a two-thirds vote; when the president is the defendant, the chief justice presides. A convicted president can then be tried after removal.
Third, all rules for impeachment are encased in Article 1, and hence these can only be changed by adoption of a new Constitutional amendment. Conversely, the phrase “or as Congress shall by law provide” appears twice in section 4. Thus, Congress can pass new laws applicable to presidential inability, provided they do not conflict with the language of the Amendment.
Four issues to resolve
One final question arises: What changes might Congress enact today to prevent another Biden crisis? Based upon two informal arrangements made, one by president Eisenhower after his serial illnesses, and one by vice-president Richard Cheney after the September 11, 2001 attacks, four matters can and should be addressed by Congress: (1) incoming presidents and vice-presidents must execute a document conferring upon at least three people power of attorney to decide disability if the president is unable to communicate; (2) they must submit to annual physical and cognitive tests, and publicly disclose the results; (3) they must disclose the results of annual medical examinations, as to any impairments that may affect their physical or cognitive ability; (4) as voters also choose an administration when electing a president, but frequently elect members of the opposition party to Congress, both members of Congress should be removed from the line of presidential succession. Voters choose a presidential administration when electing a president. A sudden partisan shift via an antiquated succession law invites intense, protracted civil strife.
Bottom line
Contrary to widely held views, the 25th Amendment has been a major success. Its first three sections have worked well. Section 4 inevitably will prove nearly impossible to apply, except in the event a president suffers a massive stroke or other grave injury that removes all plausible claims of ability to continue discharging the powers and duties of the presidency. As cabinet members entrusted with determining presidential fitness are chosen by the president, they naturally wish to retain their elevated position; vice-presidents wish to avoid accusations of political regicide. In sum, getting three out of four right is not merely “close enough for government work”; it is an equally good private-sector yardstick.
