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The 25th Amendment to the Constitution established the orderly transfer of power and process for replacing the president and vice president of the United States in the event they die in office, quit, are removed by impeachment or become physically or mentally unable to serve. The 25th Amendment was ratified in 1967 following the chaos surrounding the assassination of President John F. Kennedy.
Part of the amendment allows for the forceful removal of a president outside of the constitutional impeachment process, a complex procedure that has been the subject of debate amid the controversial presidency of Donald Trump. Scholars believe the provisions for the removal of a president in the 25th Amendment relate to physical incapacitation and not mental or cognitive disabilities.
Indeed, the transfer of power from president to vice president has occurred several times using the 25th Amendment. The 25th Amendment has never been used to forcefully remove a president from office, but it has been invoked following the resignation of a president amid the most high-profile political scandal in modern history.
What the 25th Amendment Does
The 25th Amendment sets forth provisions for the transfer of executive power to the vice president should the president become unable to serve. If the president is only temporarily unable to carry out his duties, his power remains with the vice president until the president notifies Congress in writing that he is able to resume the duties of the office. If the president is permanently unable to carry out his duties, the vice president steps into the role and another person is chosen to fill the vice presidency.
Section 4 of the 25th Amendment allows for the removal of a president by Congress through the use of a "written declaration that the President is unable to discharge the powers and duties of his office." For a president to be removed under the 25th Amendment, the vice president and a majority of the president's cabinet would have to deem the president unfit to serve. This section of the 25th Amendment, unlike the others, has never been invoked.
History of the 25th Amendment
The 25th Amendment was ratified in 1967, but the nation's leaders had begun talking about the need for clarity on the transfer of power decades earlier. The Constitution was vague on the procedure for elevated a vice president into the presidency in the event the commander-in-chief died or resigned.
According to the National Constitution Center:
This oversight became apparent in 1841, when the newly elected president, William Henry Harrison, died about a month after becoming President. Vice President John Tyler, in a bold move, settled the political debate about succession… In the following years, presidential successions happened after the deaths of six presidents, and there were two cases where the offices of president and vice president almost became vacant at the same time. The Tyler precedent stood fast in these transition periods.
Clarifying the process of transfer of power became of paramount importance amid the Cold War and the illnesses suffered by President Dwight Eisenhower 1950s. Congress began debating the possibility of a constitutional amendment in 1963. The NCC continues:
The influential Senator Estes Kefauver had started the amendment effort during the Eisenhower era, and he renewed it in 1963. Kefauver died in August 1963 after suffering a heart attack on the Senate floor. With Kennedy's unexpected death, the need for a clear way to determine presidential succession, especially with the new reality of the Cold War and its frightening technologies, forced Congress into action. The new President, Lyndon Johnson, had known health issues, and the next two people in line for the presidency were 71-year-old John McCormack (the Speaker of the House) and Senate Pro Tempore Carl Hayden, who was 86 years old.
Sen. Birch Bayh, a Democrat from Indiana who served during the 1960s and 1970s, is considered the principal architect of the 25th Amendment. He served as chairman of the Senate Judiciary Subcommittee on the Constitution and Civil Justice and was the leading voice in exposing and repairing flaws in the Constitution's provisions for an orderly transfer of power after Kennedy's assassination. Bayh drafted and introduced the language that would become the 25th Amendment on January 6, 1965.
The 25th Amendment was ratified in 1967, four years after Kennedy's assassination. The confusion and crises of JFK's 1963 slaying laid bare the need for a smooth and clear transition of power. Lyndon B. Johnson, who became president after Kennedy's death, served 14 months without a vice president because there was no process by which the position was to be filled.
Use of the 25th Amendment
The 25th Amendment has been used six times, three of which came during President Richard M. Nixon's administration and the fallout from the Watergate scandal. Vice President Gerald Ford became president following Nixon's resignation in 1974, and New York Gov. Nelson Rockefeller became vice president under the transfer of power provisions sets forth in the 25th Amendment. Earlier, in 1973, Ford was tapped by Nixon to be vice president after Spiro Agnew resigned the post.
Two vice presidents temporarily served as president when commanders-in-chief underwent medical treatment and were physically unable to serve in office.
Vice President Dick Cheney twice assumed the duties of President George W. Bush. The first time was in June 2002 when Bush underwent a colonoscopy. The second time was in July 2007 when the president had the same procedure. Cheney assumed the presidency under the 25th Amendment for little more than two hours in each instance.
Vice President George H.W. Bush assumed the duties of President Ronald Reagan in July 1985, when the president had surgery for colon cancer. There was no attempt, however, to transfer power from Reagan to Bush in 1981 when Reagan was shot and was undergoing emergency surgery.
Criticism of the 25th Amendment
Critics have claimed over the years that the 25th Amendment does not establish a process for determining when a president is physically or mentally unable to continue serving as president. Some, including former President Jimmy Carter, have pushed for the creation of a panel of physicians to routinely evaluate the most powerful politician in the free world and decide whether their judgment was clouded by a mental disability.
Bayh, the architect of the 25th Amendment, has called such proposals wrong-headed. "Though well-meaning, this is an ill-conceived idea," Bayh wrote in 1995. "The key question is who determines if a President is unable to perform his duties? The amendment states that if the President is able to do so, he may declare his own disability; otherwise, it is up to the Vice President and Cabinet. Congress can step in if the White House is divided."
Yes, the best medical minds should be available to the President, but the White House physician has primary responsibility for the President's health and can advise the Vice President and Cabinet quickly in an emergency. He or she can observe the President every day; an outside panel of experts wouldn't have that experience. And many doctors agree that it is impossible to diagnose by committee… Besides, as Dwight D. Eisenhower said, the "determination of Presidential disability is really a political question."
25th Amendment in the Trump Era
Presidents who have not committed "high crimes and misdemeanors" and are therefore not subject to impeach can still be removed from office under certain provisions of the Constitution. The 25th Amendment is the means by which that would happen, and the clause was invoked by critics of President Donald Trump's erratic behavior in 2017 as a way of removing him from the White House during a tumultuous first year in office.
Veteran political analysts, though, describe the 25th Amendment as "an unwieldy, arcane and ambiguous process abounding in uncertainties" that would not likely result in success in the modern political era, when partisan loyalty trumps many other concerns. "Actually invoking it would require Trump's own vice president and his cabinet to turn against him. That just isn't going to happen," wrote political scientists G. Terry Madonna and Michael Young in July 2017.
Ross Douthat, a prominent conservative and columnist, argued that the 25th Amendment was precisely the tool that should be used against Trump. According to Douthat in the New York Times in May 2017:
The Trump situation is not exactly the sort that the amendment's Cold War-era designers were envisioning. He has not endured an assassination attempt or suffered a stroke or fallen prey to Alzheimer's. But his incapacity to really govern, to truly execute the serious duties that fall to him to carry out, is nevertheless testified to daily - not by his enemies or external critics, but by precisely the men and women whom the Constitution asks to stand in judgment on him, the men and women who serve around him in the White House and the cabinet.
A group of Democratic congressmen led by Rep. Jamie Raskin of Maryland sought passage of a bill that was aimed at using the 25th Amendment to remove Trump. The legislation would have created an 11-member Oversight Commission on Presidential Capacity to medically examine the president and evaluate his mental and physical faculties. The idea of conducting such an examination is not new. Former President Jimmy Carter suggested the creation of a panel of doctors decide on the president's fitness.
Raskin's legislation was designed to take advantage of a provision in the 25th Amendment that allows for a "body of Congress" to declare that a president is "unable to discharge the powers and duties of his office." Said one co-sponsor of the bill: "Given Donald Trump's continued erratic and baffling behavior, is it any wonder why we need to pursue this legislation? The mental and physical health of the leader of the United States and the free world is a matter of great public concern."
Resources and Further Reading
- Bayh, Birch. “The White House Safety Net.” Opinion, The New York Times, 8 Apr. 1995.
- Douthat, Ross. “The 25th Amendment Solution for Removing Trump.” Opinion, The New York Times, 17 May 2017.
- Madonna, G. Terry, and Michael Young. “The Impeachment Referendum.” The Indiana Gazette, 30 July 2017, pp. A-7.
- NCC Staff. “How a National Tragedy Led to the 25th Amendment.” Constitution Daily, National Constitution Center, 10 Feb. 2019.