The 25th Amendment Delusion
I’m not certain how it started, but somewhere along the line, otherwise intelligent people who are quite capable of independent research started claiming that the 25th Amendment to the US Constitution can be used to remove the President from office.
This is simply false.
To see this, step one has to be “go to the source”. The text of the 25th Amendment can be seen many places, I am using the Cornell University Law website.
https://www.law.cornell.edu/constitution/amendmentxxv
You can compare this against other sites to make sure you’re not being mislead.
The 25th Amendment became official on February 10, 1967. It was meant to resolve the ambiguities of Article II Section 1 Clause 6 of the Constitution:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President…
The 25th Amendment has four sections. The first two address the office of Vice President. Section 1 specifies that the Vice President is the lawful successor to the President. Article II is not explicit about this so Section 1 of this Amendment can be viewed as a clarification.
Section 1.
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
The phrase “removal of the President from office” means by impeachment. There is no other process in the Constitution.
There are exactly three ways the President ceases to be President before the end of his term: Impeachment, resignation and death. Section 1 makes it clear that the Vice President becomes President in any of these instances. If someone seeks to remove the President, these are the options.
Next comes the question of how to select a new Vice President when that office becomes vacant. Article II makes no mention of this. So this section addresses what might be considered an omission.
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.
This was most recently exercised in 1974 when President Ford selected Nelson Rockefeller to be VP, and a year before when Nixon selected Ford.
Sections 1 and 2 address vacancies in the two offices but leave alone the question of “Inability to discharge” which I will also refer to by the term “incapacity” (and forms of that word).
The language in Article II Section 1 Clause 6 “the Same shall devolve on the Vice President…” makes it seem as though there is one process for Death or Resignation and for “Inability to discharge”. The 25th Amendment separates these, and treats “Inability to discharge” completely differently from Death and Resignation. That is the purpose of Sections 3 and 4.
Section 3 addresses the case where the President is aware that he either is or will become incapacitated for some period.
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 gives the President authority to pass the duties of office to the Vice President and reclaim them at will. Language is important here: the VP becomes “Acting President” while the President remains President and retains the power to reclaim the duties of office and thus end the term of the “Acting President” who goes back to just plain Vice President.
The only role of Congress in Section 3 is to be the party notified by the President, each house through their respective leadership.
Section 4 covers the case where the President can be deemed incapacitated by someone other than himself. Section 4 specifies that it is the Vice President and a majority of members of Cabinet. That’s it, no one else unless and until Congress passes an act replacing the members of cabinet with some other body. To date this has not occurred, so for our purposes it is the VP plus at least 8 of the 15 Cabinet members. (As of this writing there are 15 Cabinet departments. In my ideal future there will be fewer. “Department of Education, afuera!)
Note also that there must be a Vice President to exercise this Section.
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.
Congress remains the party to be notified and now gains the authority to settle a disputed declaration.
Section 4 is the most complex and thus the section most often incorrectly cited as granting the power to “remove the President”. This power does not exist within the 25th Amendment. Let’s break it down.
The first paragraph of Section 4 describes the process by which the VP and Cabinet can declare to Congress that the President is incapacitated
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.
Just as in Section 3 the result of this declaration is that the VP gains the ability to discharge the powers of the President as “Acting President”. The President remains President but is considered incapacitated just as in Section 3.
Section 4 Paragraph 2 has two clauses. Clause 1 describes how the President reclaims the powers of President after having been declared incapacitated by the VP and Cabinet.
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.
When the President declares that he is no longer incapacitated, The VP and Cabinet have 4 days to dispute the President’s declaration. If they do not then the President resumes his duties as President and the Vice President ceases to be “Acting President”.
If the VP and Cabinet do dispute, then Clause 2 comes in to effect. It is unclear to me whether the President is considered incapacitated during that period of up to 4 days.
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.
Here we have the only active role Congress gains in this matter. If the President declares himself fit after being declared incapacitated by the VP and Cabinet AND the VP and Cabinet dispute the President’s declaration within 4 days, then Congress votes to decide who is in the right.
In order to side with the VP and Cabinet 2/3 of both Houses must vote that way. In any other case the dispute is decided in favor of the President. That includes if Congress doesn’t vote within 21 days.
That’s it though. The President is never “removed” by Section 4. There’s nothing in section 4 to indicate that. It functions like Section 3 except for the possibility of a dispute.
There is IMO an ambiguity in Section 4 which could be exploited: Suppose the President is declared incapacitated by the VP and Cabinet, the President declares to the contrary, and then the VP and Cabinet dispute the President’s declaration. There is a period of 25 days if Congress is in session, or 27 days if Congress is not in session where the matter can remain in dispute. Some might argue that a soft-coup could be accomplished where the President is prevented from discharging his duties for either 25 or 27 days. Only a 2/3 vote of both houses of Congress can keep the President out of power longer than that if the President declares he is fit.
It is unclear to me whether the President is empowered or disempowered during that 25 or 27 day period. I pray we never have to find out.
The nature of the 25A was central to the plot of the Harrison Ford movie Air Force One. Your overview of the four sections of the Amendment is great, and I’m curious what you think President Trump meant by this: "The 25th Amendment is of zero risk to me, but will come back to haunt Joe Biden and the Biden administration," Trump said. "As the expression goes, be careful of what you wish for."
If the VP and cabinet know he is incapacitated and cover it up, don’t inform the people, allowing them to subversively run the country in secret... is that a high crime/misdemeanor?
That is, maybe Trump didn’t mean they were going to remove him, but that they weren’t -- is there a duty to declare an incapacitated president as incapacitated? If the highest officials in the land intentionally neglect that duty, is that a crime?