Is it likely that the 25th Amendment will be used against President Biden? Does a President even need to be impaired to invoke the 25th Amendment and presidential removal from office? Read on to see what we decided!
Why was the 25th Amendment passed if there is already a clause for Presidential succession in the Constitution: Article II, Section I, Clause 6: states that 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.”
It certainly seems like this line of succession from President to Vice President is clear, but what exactly “devolves” on the Vice President? Is it the “office” of President or just its “powers and duties”? When President William Henry Harrison died in 1841, 1 month after delivering a 3 hour inaugural speech in the driving rain, Vice President John Tyler forcefully asserted that he had become President. Although Congress accepted this result, some disputed Tyler’s reading of the Presidential Succession Clause.
Also, there is no clause for what happens when a VP dies or is disabled.
The 25th Amendment Presidential Disability and Succession
Section 1. In case of removal of the President from office or of his death or resignation, the Vice President shall become President.
Q: Has a President ever resigned or died in office?
A Vice President has become President upon the death of the President eight times in our history. How about resignation? Once.
Q: Has a President ever been removed from office?
No, but should they have been? President Garfield was in a coma for eighty days before succumbing to the effects of an assassin’s bullet 1881 (from a political opponent who wanted VP Arthur to succeed Garfield!), and President Wilson who suffered from the effect of a serious stroke for the last eighteen months of his term (1919).
With the advent of nuclear weapons during the Cold War, the nation needed a fully functioning presidency at all times. In 1958, President Dwight D. Eisenhower, who had numerous health problems, sought to break the pattern by being more open about his health and by entering into an agreement with Vice President Richard Nixon that provided for Nixon to serve as Acting President in the event of presidential “inability.”
In the aftermath of President Kennedy's assassination, and Lyndon B Johnson, who had a history of a heart attack, taking over as president, but leaving the Vice Presidency vacant, Congress finally proposed the 25th Amendment. Led by Senator Birch Bayh, a first term senator, in July of 1965, Congress sent the Twenty-Fifth Amendment to the states for ratification. Less than two years later, the necessary thirty-eighth state legislature ratified it. BTW did LBJ ever have a VP?
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.
Q: Has there ever been a vacancy in the office of the Vice President?
Prior to the adoption of the Twenty-Fifth Amendment, one Vice President resigned, seven died in office, and eight took over for Presidents who died in office: all in all, the vice presidency was unoccupied more than 20 percent of the time.
Not having a Vice President may not have been a problem early in our country's history, but as the importance of the Vice President position grew it became more concerning for the office to be left vacant. So much so that Congress passed the 1947 Presidential Succession Act, which places the Speaker of the House and the President Pro Tempore of the Senate immediately behind the Vice President in line for the presidency, even when they do not belong to the President’s political party.
Q: Has the 25th Amendment ever been invoked?
This Amendment saw multiple use during the 1970s and resulted for the first time in our history in the accession to the Presidency and Vice-Presidency of two men who had not faced the voters in a national election.
First, Vice President Spiro Agnew resigned (accused of taking bribes and who died at Atlantic General Hospital, Berlin, MD) on October 10, 1973. President Nixon nominated Gerald R. Ford of Michigan to succeed him (who was the House Minority Leader at the time), following the procedures of § 2 of the Amendment for the first time.
Second, President Richard M. Nixon resigned his office August 9, 1974, and Vice President Ford immediately succeeded to the office and took the presidential oath of office at noon of the same day.
Third, again following § 2 of the Amendment, President Ford nominated Nelson A. Rockefeller of New York to be Vice President; on August 20, 1974.
Regarding presidential vacancies, Section 1 of the Twenty-Fifth Amendment formalized the Tyler precedent. It confirms that when the President is removed from office, dies, or resigns, the Vice President becomes President.
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.
Q: Has a President ever transmitted his Presidential authority to his VP?
President Ronald Reagan (once) and President George W. Bush (twice) transferred authority to their Vice Presidents under Section 3 for a matter of hours while they underwent planned surgeries. Section 3 allows the President to transfer authority temporarily, by submitting a written declaration that he is “unable to discharge the powers and duties of his office.” The President can reclaim those powers and duties later by submitting a second declaration “to the contrary.”
Q: What if the President is unable/incapable of discharging his powers and duties as President, but he is also unable to provide a written declaration that he is unable to discharge the powers and duties of President?
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.
Q: Who are the principal officers of the executive departments? Or other such body provided by law?
Q: What if the President disagrees with the VP and Congress that he is not fit for duty and believes he is fit for duty?
Section 4 Cont’d: 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 principle 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.
So basically if the President can write a letter that he is fit for office, he can resume his duties as President. UNLESS the VP AND these “principal officers of the executive department” OR “such other body” that Congress appoints, submits their written letter that the President is actually unfit for office. THEN Congress decides by two thirds vote.
Q: How is it determined when a President is not fit for office? What counts as presidential “inability.” At the Constitutional Convention in 1787, delegate John Dickinson asked, “What is the extent of the term ‘disability’” in the proposed presidential succession clause, “and who is to be the judge of it?” The response is recorded…… BLANK!
Q: Can the 25th Section 4 be used as an alternative to impeachment?
The 25th Amendment was not meant to be a tool for circumventing the impeachment process or for punishing Presidents who make unpopular or unwise decisions. It was meant to deal with situations such as a kidnapping of the President by an enemy, or a physical or mental illness that degrades the President’s faculties or competence to a substantial degree. A President who gives a bad speech plainly is not “unable” within the meaning of Section 4. A President who falls into a coma plainly is.
Q: Has Section 4 ever been used?
When certain White House aides found President Ronald Reagan to be “inattentive and inept” after the Iran-Contra scandal, his staff briefly considered the Section 4 option before dismissing it as unwarranted. Could they have sought President Reagan’s removal if his “inattentiveness and ineptness” had lasted longer or gotten worse?
Q: What exactly are the “executive departments”? And who are the “principal officers?”
It's not clear, presumably the Cabinet. President Joe Biden’s Cabinet includes Vice President Kamala Harris and the heads of the 15 executive departments — the Secretaries of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, State, Transportation, Treasury, and Veterans Affairs, and the Attorney General. Additionally, the Cabinet includes the White House Chief of Staff, the US Ambassador to the United Nations, the Director of National Intelligence, and the US Trade Representative, as well as the heads of the Environmental Protection Agency, Office of Management and Budget, Council of Economic Advisers, Office of Science and Technology Policy, and Small Business Administration.
Final Q: Is it likely that the 25th Amendment will be used against President Biden given what we know now about the 25th Amendment?
Is he impaired? May not even be relevant, just need the votes.
Would VP Harris AND the majority of the Cabinet submit in writing that President Biden is impaired?
If President Biden agrees he is impaired, VP Harris becomes President.
If President Biden disagrees and wants to remain President, then Congress has to agree by two thirds majority.
Movies with feature the 25th Amendment: Seven Days In May, Enemy Within.
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