The Limits of the 25th Amendment

Brian C. Kalt

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In books, TV shows, and films, fictional American presidents often lose their grip on power. At that point, the 25th Amendment — the constitutional addition that deals with presidential inability to discharge the powers and duties of the office — takes center stage. From President James Marshall battling airborne terrorists in Air Force One to President David Palmer struggling with his disloyal cabinet in 24, the amendment's dramatic potential is obvious: Put the world's most powerful office up for grabs, and the spectacle practically writes itself.

But since the 25th Amendment's ratification in 1967, reality has been much less dramatic. The amendment's less-interesting inability provision, Section 3, has been used three times by presidents about to go under sedation. Simple and straightforward, Section 3 allows the president to declare himself disabled and pass power temporarily to the vice president. Then, whenever the president declares himself recovered, he retakes power.

Sooner or later, though, there will be a disabled president who cannot or will not invoke Section 3. Whether the president is comatose, missing, or delirious, the country will be left leaderless. This is when the more interesting, more complicated Section 4 will come into play, setting in motion a process through which the vice president and cabinet can temporarily sideline the president without his consent.

Section 4 has never been invoked, and — not least because of Hollywood's dramatic license when portraying it — public understanding of it is shaky at best. President Donald Trump's erratic governing style has prompted a surge in discussion of the provision, much of which has fundamentally misunderstood the law, politics, purposes, and limits of Section 4. Some vocal Trump opponents — from liberal congresswoman Jackie Speier of California to conservative New York Times columnist Ross Douthat — began calling for Section 4's use after Trump took office. In January 2018, Michael Wolff's book Fire and Fury amplified this rhetoric by reporting that White House staffers had discussed Section 4. The 25th Amendment has also become a rallying cry for anti-Trump activism on social media. But in reality, Section 4 would be useful and effective only under very limited circumstances. It was designed to ensure that there is a conscious, communicative person in charge of the government, not to stop unfit or even unbalanced presidents (as today's Section 4 advocates view Trump) from doing bad things.

This article offers no opinions about President Trump, his fitness for office, or his mental health. For even if what Trump's critics believe about him were verifiably true, Section 4 would not be very useful in dealing with it. But the current interest in Section 4 provides a rare and valuable opportunity for some civics education. Better public understanding of the law, politics, and limits of Section 4 could be very helpful if the time ever comes to invoke it against any president.

THE BASICS

Every day, it seems, Trump opponents chastise "the GOP" for failing to invoke the 25th Amendment to remove him from office. These demands for action suggest a simplistic view of the procedure: First, someone invokes the 25th Amendment; next, the president is cast immediately and forever into a Pit of Despair.

This is not how Section 4 works. (In fact, people rarely mention Section 4 and typically refer instead to the "25th Amendment." This is ironic, given that Section 4 has never been used while the other three sections of the amendment have been.) First, the "someone" who invokes Section 4 must be the vice president and cabinet. Second, Section 4 never removes the president from office, let alone permanently; it transfers power tentatively to the vice president as "acting president." Third and most important, the president can move to retake his powers, and the procedures stack the deck heavily in favor of his return.

For a better understanding of Section 4, it helps to start with the actual text:

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.

This process can be broken down into four parts. The first is invocation. Section 4 is invoked when the vice president and a majority of the cabinet declare that the president is "unable to discharge the powers and duties of his office." (Congress can pass a law to substitute a different group for the cabinet, but it has never done so.) Immediately upon transmittal of the declaration, the president's powers and duties are transferred to the vice president, who becomes acting president.

The second part is restoration. To begin to retake his powers, the president must declare that "no inability exists." If he does, the vice president and cabinet have four days to disagree; crucially, the vice president stays in power during these four days. If the vice president and cabinet do not disagree with the president, the latter retakes his powers at the end of the four days. Section 4 does not specify whether the vice president or cabinet can agree to transfer power back earlier.

The third part holds the potential for a dispute. If the vice president and cabinet disagree with the president within the four days, the issue goes to Congress. The vice president stays in power while Congress deliberates. If two-thirds majorities in the House and Senate vote that the president is "unable," the vice president continues as acting president. If either chamber falls short of a two-thirds majority against the president, or fails to vote within 21 days, the president retakes his powers.

The fourth and final part is the aftermath. If the president loses the congressional vote, he can try again as often as he pleases, declaring that "no inability exists" and triggering a new four-day waiting period. If the president retakes power, the vice president and cabinet can go back to the first step of invocation if they see fit and restart the whole process.

THE LEADERLESS PROBLEM 

Section 4 was not designed as another way to remove presidents from office; it is not an alternative to the impeachment process. Rather, Section 4 was meant to address a deficiency in the original Constitution. Article II, Section 1, Clause 6 states that, "[i]n 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." In other words, when the president is incapacitated, the vice president is supposed to step in. But the original Constitution provided no process for declaring presidential incapacity, let alone a process for handling disagreements about it.

Making matters worse, the phrase "the same shall devolve on the Vice President" left it unclear what "the same" was — the powers and duties, or the office itself? After President William Harrison died in 1841, Vice President John Tyler insisted that he now had the office and not just the powers; he declared that he was president, not merely "acting president." That precedent held (eventually enshrined as Section 1 of the 25th Amendment), but it created a problem. If a presidential death means the vice president becomes president and not just acting president, it suggests that presidential "inability" would have the same permanent result. In other words, if a president were temporarily incapacitated and the vice president stepped in, the president would be unable to come back when he recovered.

This became a problem when President James Garfield was shot in July 1881 and survived for 79 days before dying. Garfield was unable to work for much of that stretch, but Vice President Chester Arthur never attempted to act as president. A majority of the cabinet, including the attorney general, believed that any transfer of power to Arthur would be permanent. Arthur was reluctant to look like a usurper given the possibility that Garfield might recover. The result was that the country essentially lacked a president for almost three months.

The problem recurred in 1919 when President Woodrow Wilson had a severe stroke. For months, he was sequestered not only from the public but from his administration, with his wife acting as gatekeeper. But while his condition was concealed, his absence was undeniable. Cabinet members and congressional leaders tried to convince Vice President Thomas Marshall to take charge. Again, though, no one was certain whether Wilson would be able to return to power if he recovered, and Marshall decided against making a move. Wilson went six months without meeting with his cabinet. Vacancies persisted without the president to appoint replacements. Congress rejected Wilson's proposal to join the League of Nations without the president to advocate for it.

These precedents were firmly in the mind of President Dwight Eisenhower when, suffering from health problems, he made an agreement with Vice President Richard Nixon. The agreement gave Nixon the power to step in for Eisenhower if the latter were ever incapacitated but unable to say so, and gave Eisenhower the ability to retake power afterward if and when he felt able. Eisenhower acted more responsibly than his predecessors, recognizing that, in the nuclear age, it could be an existential threat to go even a few hours without anyone in charge.

Eisenhower also pushed for a constitutional amendment. Soon after, the shock of President John Kennedy's assassination (which raised concerns about what would have happened had Kennedy survived with severe disabilities) moved the process forward. Congress approved the 25th Amendment in 1965, and state ratification was completed in 1967.

From this history, we can see what Section 4 was designed to do: avoid situations in which nobody is exercising presidential power. There were two main reasons for past power vacuums: the Constitution's lack of a process, and the fear that any power transfer would be permanent. Section 4 addressed both of these problems, providing a clear process that made power transfers temporary.

What is also clear is what Section 4 was not designed to do: remove inept presidents who are doing a disastrously bad job. Section 4's language is broad enough, arguably, to apply in such situations. But its design ensures that it can cover such situations only in the rarest of cases.

LIMITED BY DESIGN

Section 4's creators recognized that they were providing a mechanism to expel presidents from power (albeit temporarily) — a tempting tool for enemies of any president, disabled or not. As such, Section 4 had to be designed in a way that made it useful for true inability — situations in which, functionally, no one is holding the reins — and not for when a lot of people simply think that the president is a disaster.

Section 4's key phrase ("unable to discharge the powers and duties of his office") is broad. It does not make clear if it requires complete incapacitation or if ineptitude will do. But this vagueness was intentional. Rather than provide a detailed standard that tried to anticipate every sort of presidential-inability case in advance, Section 4 relied on its designation of a decision-maker and its provision of a process to keep its use properly confined.

The salient point is that the Constitution already has a mechanism for dealing with bad presidents doing bad things: impeachment. Section 4's authors did not want to create an end run around the impeachment process. Impeaching and removing a president is hard, so deploying Section 4 needed to be harder. And it is. Removing a president via impeachment requires winning a two-thirds majority in the Senate but only a simple majority in the House. In contrast, if the president contests a Section 4 action, displacing him requires two-thirds majorities in both the House and Senate. This requires 72 more representatives than impeachment. If a president is unpopular enough that two-thirds of the House and Senate want him out, he would have long since passed the threshold for impeachment. Conversely, if the president is not unpopular enough to impeach, he also will not lose a congressional Section 4 vote based on his unpopularity.

Another important point is that Section 4 requires the president's own team, the vice president and cabinet, to move against him in the first place. The vice president is the president's hand-chosen deputy. The president picks his cabinet members and, on a moment's notice, can fire them. Requiring that these officials be arrayed against the president raises the bar much higher. It would be absurd for anyone worried about the difficulty of impeachment to think deploying Section 4 would be easier.

Finally, impeachment and removal are permanent; a convicted president is gone, and that's that. In contrast, Section 4 is temporary and contestable. Even if a president were displaced by a Section 4 action and lost the congressional vote, he could try repeatedly to return to power. If the vote in Congress were close, intense pressure would be applied for the next vote, especially if there were congressional vacancies to fill. It would be hard to move on, making Section 4 disruptive to the nation in a way that even impeachment and removal would not be.

Section 4's structure makes certain cases — the ones it was meant to address — relatively easy. If a president were comatose, unable to communicate, or suffering from a psychotic break, the vice president and cabinet could act swiftly to transfer power to the vice president. The president would not contest their action because he would be unable to.

Other cases would be tougher. If a president were in the early stages of senile dementia but in denial about it, it might be difficult for the vice president and cabinet to gauge the best moment to invoke Section 4. If they acted too early and the president resisted, the vice president and cabinet could have a hard time winning two-thirds majorities in Congress. The whole spectacle would be destabilizing, especially if the president won and decided to fire the disloyal cabinet members. To be sure of winning, the vice president and cabinet would need their case to be airtight: The president would need to be hopelessly ineffectual, not just wobbly. The same points would apply if the president were mentally ill but not completely mad. Section 4's structure forces the vice president and cabinet to err on the side of restraint.

The more disabled the president was, the more likely the vice president and cabinet would be to act. But there would be another factor: What damage is being done? Presidents delegate much of their authority; many executive-branch functions do not require an active president at the helm. Certain things do require an able president, though, and if Section 4 were the only thing standing between life and death for a lot of people, the vice president and cabinet would be more likely to take their chances against a disabled president who was lucid enough to fight back.

SECTION 4 VERSUS IMPEACHMENT

It is clear, then, that Section 4 would not work well unless the president was either unable to contest the action, or was functional but poised to do something irreparably catastrophic. If a president did not meet these criteria, Section 4's unsuitability would be unwelcome news to his most ardent opponents. If one believes that a conscious, lucid president is nevertheless unhinged, inept, and destructive, it is tempting to look for anything that might displace him.

Truth be told, the vice president and cabinet could invoke Section 4 against such a president. Even though "unhinged, inept, and destructive" does not seem to meet Section 4's threshold ("unable to discharge the powers and duties of his office"), the vice president and cabinet get to make that call. But while the vice president and cabinet could use Section 4, it would almost certainly fail them. The president would contest their action and, given the substantial majorities required for him to lose the congressional vote, would probably win. He would be back in power within days, and his temporary furlough probably would not have improved his temperament or his abilities. He would likely start firing people.

To be sure, two-thirds majorities in the House and Senate might vote to keep the president out of power. At a certain point, if a president's behavior were troublesome enough, Congress would support sidelining him even if he is not technically "unable." But as mentioned above, if two-thirds of the House and Senate believed that the president needed to be stopped, impeachment would have made sense long before that. Why wait for the vice president, the cabinet, and 72 additional House members to come on board? And why favor Section 4, which is contestable and temporary, when impeachment and removal would be permanent?

There are three categories of cases where Section 4 would be worth using instead of, or in addition to, impeachment. The first involves the "easy cases," in which the president is incapacitated but has not done anything wrong. Impeachment is limited to "high crimes and misdemeanors," and having a stroke is not a high crime or misdemeanor. But being unhinged, inept, and destructive could be. Legally, the bar for impeachment is low; any abuse of power or public offense could do. The real limit on impeachment is political. Either Congress would want the president out and could procure enough votes, or it wouldn't. It seems unlikely that a simple majority of the House would take a restrictive view of "high crimes and misdemeanors" and oppose impeachment, while at the same time two-thirds of the same House would adopt a loose definition of "unable" and support a Section 4 action. Using Section 4 would make sense only for a president truly unable to perform his job — but also truly unimpeachable.

The second possible reason to prefer Section 4 to impeachment is political. There might be large majorities in the House and Senate who want the president out, but they might be unwilling to make the first move that impeachment would require. In other words, Congress might be more comfortable if the vice president and cabinet got the ball rolling. Impeachment would be highly politicized, and there could be immense pressure on the president's party in Congress not to join in. A declaration by the president's own vice president and cabinet that he is unable to function would provide substantial political cover for members of his party who want him gone.

This is complicated, though. The reason a Section 4 action would provide this political cover is that the vice president and cabinet would be unlikely to invoke it lightly. Section 4's drafters chose the vice president and cabinet for this role, in part, because they would be among the officials most reluctant to move against the president in a politicized way. Typically, then, the "political cover" would be a function of the fact that the president actually is incapacitated. If not, it would take a highly irregular political situation for the vice president and cabinet to stick their necks out at precisely the same time that Congress would not.

Moreover, before the vice president and cabinet moved against a president who would contest their action, they would want some assurance of success in the congressional vote. They would be taking a huge risk; failure would mean that the president gets his job back, with new reasons to be vengeful. But if the premise is that Section 4 is being used because Congress is too skittish to impeach, how would the vice president and cabinet get that assurance? It would be hard for Congress to communicate its intentions to the vice president and cabinet without the media (and then the president) getting wind of it. This would undercut any notion of Congress nervously protecting itself from making the first move. Depending on how much information the president had — or how paranoid he was — he could also act pre-emptively, firing members of his cabinet before they could even vote. For all of these reasons, the notion that Congress would back a Section 4 action against a bad president but be afraid to impeach him seems like a remote possibility.

The third and final exception is imminent catastrophe. Section 4 might be used even against an impeachable president if its instant effect is needed. When the vice president and cabinet invoke Section 4, the president is stripped of his powers immediately. In contrast, the impeachment process could take weeks to complete, with the president staying in power in the meantime. If the president were using his powers to perpetrate some sort of instant, irreparable disaster (say, an ill-advised nuclear attack), it could be worthwhile to invoke Section 4.

But there are problems with this emergency exception. First, there is no obvious way to limit it to true Section 4 situations. If the vice president and cabinet think the president is about to initiate something cataclysmic, they could use Section 4 to stop him even if they have no good-faith argument that the president is actually "unable." To be fair, one would be hard-pressed to argue against the vice president and cabinet using their constitutional powers to save millions of lives. But putting Section 4 to such uses undermines its strength as a lawful way to deal with inability. It would look more like a coup.

Because such a Section 4 action against a conscious, lucid president would be only temporary, impeachment would need to accompany or follow after its use. The idea would be to prevent the catastrophe and sideline the president long enough for the more permanent impeachment process to play out. Any Section 4 victory the vice president and cabinet won would be pyrrhic without a strong impeachment-and-removal initiative attached to it. If the president defeated the impeachment efforts and (presumably) the Section 4 action, he would be able to fire his disloyal cabinet members and restart his march toward disaster without anyone to thwart him.

None of these three exceptional categories are of much use if the president is merely unfit. If a bad president is doing bad things, the remedy is the impeachment process. If that won't work, then neither will Section 4.

THE FOUR-DAY WAIT

There is one more danger in using Section 4 against a president lucid enough to fight back. A common misreading of Section 4 could lead to a horrifying situation in which two people claim the presidency at the same time. Of all the things that the public needs to understand about Section 4, this is perhaps the most important.

Under Section 4, when the president declares that "no inability exists," he does not retake power immediately. The vice president and cabinet have four days to decide whether to disagree and send the matter to Congress; during those four days, the vice president remains acting president. Unfortunately, Section 4 is often misread on this point.

Among numerous examples of learned commentators making this error is Jon Meacham, who got it wrong in a January 2018 column in Time magazine. (When the error was brought to his attention, he had Time run a correction.) If a Pulitzer Prize-winning historian of the presidency like Meacham can make this mistake, it is easy to imagine the president making it too. In the midst of a conflict, the president might feel besieged, and he would have every incentive to interpret things in his own favor.

The stakes would be high. If Section 4 were invoked because the president was completely incapacitated, there would be time for the nation to acquaint itself with the ins and outs of the provision. If the president later claimed to have recovered and the vice president and cabinet disagreed, chances are good that the populace would understand by then that the president would not retake power right away. But if Section 4 were used against a conscious president because of an emergency, there would be no time to set the stage this way. Unfortunately, an emergency like that would be the worst possible time to have two people claiming to be in charge. Important opinions — the public's but especially the military's — could be split, not based on careful study of Section 4, but rather based on which side people supported.

The key text in Section 4 states, "[W]hen the President transmits...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 [the cabinet] transmit within four days...their written declaration that the President is unable to discharge the powers and duties of his office" (emphasis added). This is like saying, "I will repossess your car unless you pay your bill within four days." Any action — returning power to the president or not; repossessing the car or not — is based on whether the condition is satisfied, and it takes four days before we can know that.

This issue came up when Section 4 was being debated in Congress. A previous version of Section 4 had made it much clearer that the vice president is in charge during the waiting period. The language was altered but not with the intention of changing the vice president's control. Senator Birch Bayh, the main sponsor of the 25th Amendment, spelled it out for the record on the Senate floor in an exchange with Senator Gordon Allott (at a point in the drafting when the waiting period was seven days rather than four):

Mr. ALLOTT. The President would then send to Congress his written declaration. Who would be President during the 7 days?

Mr. BAYH. The Vice President, the Acting President....

Mr. ALLOTT. To get to the question in another way, so the issue will be clear, if a Vice President had assumed the duties of acting President, and the elected President then decided that he wished to state that there is no inability any longer, it would be 7 days before he could possibly resume the office of President.

Mr. BAYH. That is correct.

Mr. ALLOTT. There is no question about that. That is the intent.

Mr. BAYH. That is the intent.

The exchange — among several others in the House and Senate — made Section 4's meaning completely clear to Bayh, Allott, and the rest of Congress. After the Senate approved this language, the House took up the amendment. One representative specifically proposed changing who was in charge during the waiting period from the vice president to the president. The proposal failed after a serious debate. In sum, there is no ambiguity in the record: It was clear to those who voted on the 25th Amendment that the vice president is in charge during the waiting period.

Structural considerations also favor leaving the vice president in charge during the waiting period. First, consider the juxtaposition of Sections 3 and 4. In Section 3, the president can declare himself disabled and then retake power immediately by proclaiming that he has recovered. The drafters consciously contrasted this provision with Section 4, in which a challenged president would have to wait at least four days to retake power, and would need the assent of either the vice president, the cabinet, or part of Congress. Structuring it this way, as a Senate committee report put it, was meant to "reduce the reluctance" of the president to invoke Section 3.

Another structural point is that, if the president could retake power during the waiting period, he could fire everybody in the cabinet who voted against him, replace them with pliant acting secretaries, and prevent Congress from ever considering the dispute. Since Section 4 was designed to funnel disputes to Congress for resolution, it would be strange if it provided such a direct — and destructive — way for one side in the dispute to short-circuit the process.

As questions of constitutional law go, this one is unusually one-sided. In the heat of the moment, though, the president could get it wrong. Unless it is widely understood that the vice president stays in charge during the four-day waiting period, the president could have backers. Having two people both claiming to be president and commander-in-chief could rapidly produce a calamity.

A LIMITED TOOL 

Section 4 of the 25th Amendment is an unusual provision. When it comes to fixing flawed constitutional structures, Congress is rarely so proactive and prudent.

But Section 4 is also limited and targeted. It does not solve every problem that a president might pose, or that his critics might perceive. You cannot hammer nails with a paintbrush. If and when the time comes to use Section 4, we will be glad it is there. Until then, though, it is best to leave it on the shelf.

Brian C. Kalt is a law professor at Michigan State University. He is currently working on a book titled, Unable: The Law, Politics, and Limits of Section 4 of the 25th Amendment.


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