I published this as a Facebook note in 2017, when impeachment and related topics were in the air. That was early in the Trump administration and before anyone had ever heard of covid-19. Now, a few people are asking me about the Twenty-Fifth Amendment again, so I have decided to post it to my blog (Facebook is discontinuing “notes”) and republish.

With President Trump’s various difficulties and the realization that removing a president of the United States from office through impeachment is both difficult and unprecedented, there has been a flurry of discussion about the Twenty-Fifth Amendment to the Constitution.

Several people have asked me about the particulars of this amendment, so here I will attempt to explain it in plain language the way I would explain it to students.

Serious discussion about what became the Twenty-Fifth Amendment began after President Eisenhower’s three major illnesses, one of them a heart attack, in the 1950s. When the aging Eisenhower left the office to a man in his forties, in 1961, interest in the topic died away somewhat, though not completely. After the Kennedy assassination, Congress and the executive branch had to confront a troubling question: what if Kennedy had survived his massive head wound? Already, the country had endured several instances of serious presidential disability, most notably President Garfield’s 80 day decline after his shooting in 1881, President Wilson’s 1919 stroke and its 18-month aftermath, and President Eisenhower’s illnesses. The original constitutional provisions for presidential disability were inadequate and ambiguous, leaving it unclear whether or how the vice president was to intervene. Accordingly, Vice President Arthur refused to do anything at all as Garfield lay dying, and Vice President Marshall followed suit while Wilson was ill. Vice President Nixon met with Eisenhower’s cabinet during the latter’s illnesses and was widely praised for his low-key but effective efforts. In the dangerous Cold War period, though, it was clear that some kind of formal arrangement was necessary, one that would settle all questions of presidential succession and disability.

In 1965, Congress proposed the Twenty-Fifth Amendment. In 1967, the 38th state legislature ratified the amendment, and it became part of the Constitution.

The Twenty-Fifth Amendment has four sections: The first section simply states that if the president dies, resigns, or is removed from office, the vice president becomes president. This was what had been done since the first presidential vacancy in 1841, but the Constitution was actually ambiguous as to whether the vice president was to become president or was somehow to merely act as president. This section settled the question once and for all. It is assumed that it also settled the question of the presidential oath. It is now clear that the vice president becomes president instantly if there is no president; the oath is not an impediment to his carrying out his duties, though a new president would presumably take the oath anyway, for appearances’ sake, as soon as he could do so. Presumably, the congressional framers of the amendment wanted no repeats of November 22, 1963, when an ostensibly leaderless nation lived in danger for two hours while people chased down the presidential oath and a federal judge.

The second section provided a means of filling a vacancy in the vice presidency. Throughout history, there had been 16 such vacancies (there have been 18 to the current date). Eight vice presidents had acceded to the presidency, leaving the vice presidency vacant, seven others had died while vice president, and one had resigned. In total, about 40 years had passed with no vice president—about 22% of the period since the beginning of the American presidency.

After the ratification of the Twenty-Fifth Amendment, the president of the United States was empowered to appoint a new vice president whenever that office was vacant; the appointment would require the approval of both houses of Congress. This was the procedure President Nixon used to appoint Vice President Ford in 1973, after the resignation of Vice President Agnew. When Ford became president the following year, he used the same procedure to appoint Vice President Rockefeller.

The third section of the amendment provides a way for the president of the United States to declare, of his own volition, that he is temporarily unable to fulfill the duties of his office. Though the amendment does not specify, this section is understood to address cases of incapacitating but presumably temporary illness of which the president, himself, is aware; surgery; or some kind of family trauma (the loss of a spouse or a child, for instance) requiring that the president have time to grieve and recover emotionally.

The procedures for activating Section 3 of the amendment are specific and relatively straightforward. If the president decides that he is, or will be, temporarily unable to perform his duties, he signs two identical letters to that effect, and “transmits” one to the speaker of the House of Representatives and one to the president pro tempore of the Senate. At that moment, all the president’s powers are transferred to the vice president of the United States, who becomes acting president of the United States. This arrangement remains in place until the now powerless president sends new letters to the speaker of the House and the president pro tempore of the Senate, declaring his inability over, at which time he resumes the powers of the presidency.

The first person ever to serve as acting president of the United States, pursuant to Section 3 of the Twenty-Fifth Amendment, was George H. W. Bush. He was acting president for several hours during President Ronald Reagan’s colon cancer surgery in 1985. Vice President Dick Cheney served twice as acting president, for a few hours each time, during minor surgical procedures performed on President George W. Bush.

The provision of the Twenty-Fifth Amendment that is currently generating discussion is Section 4, which provides a way for other officials to declare the president of the United States unable to perform his duties. Section 4 anticipates a situation in which an unconscious or severely physically (or perhaps mentally) compromised president is unable to recognize his incapacity and/or unable to carry out the procedures outlined in Section 3.

Section 4 empowers the vice president and a majority of the “principle heads of the executive departments” (the Cabinet members), or some other group of people that Congress might appoint for such a purpose, to transmit to the speaker of the House of Representatives and the president pro tempore of the Senate, letters declaring that the president is unable to perform the duties of his office. In such an event, the president’s powers would immediately devolve on the vice president, who would become acting president of the United States, just as outlined in Section 3. The president would remain in his position but would be shorn of his powers.

The writers of Section 4 anticipated the obvious: that such a procedure might be used for nefarious purposes, and that the president of the United States might challenge the loss of his powers. The section states that the president can easily regain his powers by simply challenging their transfer, and waiting. To do so, the president need only sign letters to the speaker of the House and the president pro tempore of the Senate, stating “that no inability exists.” After a waiting period of four days, during which the vice president continues as acting president, if no further action is taken by the vice president and the Cabinet (or the vice president and the oft-cited “other body”), the president regains his powers.

When the president signs and transmits the letters declaring that he is not disabled, the vice president and the cabinet (or Congress’s “other body” if it has created one) would have a complex choice to make. They would have to decide whether to “go to the wall” in their insistence that the president is unable to perform his duties. From the time of the president’s challenge to their actions, they would have four days in which to sign yet another pair of letters to the speaker and the president pro tempore, insisting that the president, contrary to his claims, is, indeed, unable to perform the duties of his office. At that point, the dispute would move to Congress.

Section 4 states that if the vice president and his allies challenge the president’s resumption of his powers, Congress is to assemble within 48 hours if it is not already in session, to resolve the question—obviously a grave constitutional crisis. Congress has up to 21 days, during which the vice president will continue as acting president, to determine, by a two-thirds vote of both houses, that the president is unable to perform his duties. If they so decide within the 21 days, the vice president will continue to act as president for an indefinite period (the remainder of the term, or perhaps until Congress agrees with the president in some future challenge—the amendment is unclear). If Congress does not affirmatively declare (by a two-thirds vote of both houses), within 21 day of the president’s adversaries’ written rebuttal to his counterclaim, that the president is, indeed, unable to perform the duties of his office, then the president shall resume his powers.

Discussion of Section 4:

• In the current hyper-partisan context, note that the impeachment process (which is for instances of presidential criminality) requires a simple majority of the House for impeachment and a two-thirds vote of the Senate for conviction and removal. The Twenty-Fifth Amendment’s Section 4 provisions to strip the president of his powers but not his office, on the other hand, require, in their final phases, two-thirds majority votes in both houses, if the transfer of the president’s powers to the vice president is to be made permanent or even semi-permanent. Therefore, if the ultimate goal is the cynical one of simply depriving Donald Trump of power—getting him out of the way—the notoriously difficult impeachment route is effectively easier than the Twenty-Fifth Amendment route.
• Unlike the vice president, who cannot be fired by the president or anyone, the cabinet members serve at the pleasure of the president. Therefore, any collusion between them and the vice president would have to be planned in extreme secrecy, or they could easily be purged by the president before it comes to fruition.
• In the final analysis, the Section 4 provisions of the Twenty-Fifth Amendment, though complex and disruptive if carried to their legal extremes, ultimately favor the word of the duly-installed president of the United States over that of the people trying to strip him of his powers. Any attempt to invoke these provisions simply to “get rid” of an unpopular president would probably be met with enough cold feet in Congress to cause it to fail, given the historical difficulty of achieving two-thirds majorities in both houses.
• Though there is obviously no precedent for such a thing, it is always possible that the federal courts could intervene to stop or reverse any perceived “misuse” of the Twenty-Fifth Amendment, or even of the Constitution’s impeachment provisions. This is speculation, of course, but neither procedure was intended to remove or impede a merely controversial or unpopular president. While the courts might invoke the Political Question Doctrine, in effect saying it is none of the judicial branch’s business how Congress deals with President Trump, there is at least a theoretical possibility that the judges could seek to protect the Constitution by halting or reversing Congress’s actions. There is simply no way to know how it might go.

As always, the ancient Chinese curse seems relevant: May you live in interesting times.