Use of the 25th Amendment to the U.S. Constitution Under Extraordinary Circumstances

Passed by Congress on July 6, 1965, and ratified on February 10, 1967. The 25th Amendment changed a portion of Article II, Section 1 of the United States Constitution.

If the President is unable to serve, through illness or disability, the 25th Amendment makes clear the powers of the presidency can voluntarily transfer to the Vice President as “Acting President” until the president regains the ability to perform his duties (such as when a president undergoes major surgery) or until the next election. Further, it provides an avenue for a president to be involuntarily removed, temporarily, under extraordinary circumstances after consultation with his or her own leadership team. There are national security reasons why the senior managers of the Administrative team may decide this is necessary.

I will include the verbatim text of the 25th Amendment to the Constitution of the United States following this explanation at the end of the article.

Other than death or voluntary resignation or temporary transfer of power to insure the security of the United States, the 25th Amendment provides that a president can be removed if the vice president and a majority of the cabinet determines he or she is “unable to discharge the powers and duties” of the office. If the president contests the finding, and the vice president and cabinet persist, Congress can order the president’s removal by a two-thirds supermajority vote in both chambers. The amendment also clarifies that the vice president is the successor if a president leaves office in midterm, under these circumstances.

When President William Henry Harrison died in office in 1841, there was a debate over whether Vice President John Tyler would become acting president, or president, or officially remain vice president. No such succession provisions existed then.

The 25th Amendment was introduced in Congress, and ratified by the requisite three-quarters of U.S. states, after the assassination of President John F. Kennedy. In the confusion following the shooting of Kennedy, there were tense questions about who would run the country should he survive but only in a semiconscious or otherwise grievously wounded condition.

The 25th Amendment has never been invoked to remove a sitting president, but it was used on two occasions to fill a vacant vice presidency. In 1973, after Spiro Agnew was forced to resign because of tax-evasion charges, President Richard Nixon nominated U.S. Representative Gerald Ford to become vice president. He was approved by the House and Senate. After Nixon resigned the following year, Ford became president and nominated Nelson Rockefeller, a former governor of New York, as vice president. He also was confirmed by Congress.

Why is the 25th amendment coming up now, and Congress assembling to discuss the Amendment on Friday October 9, 2020? Democrats in the US Congress have announced a plan to create a commission to review whether Donald Trump or any President in the future is capable of carrying out his presidential duties or should face removal from office. This commission will originate from the introduction of the Commission on Presidential Capacity to Discharge the Powers and Duties of Office Act. The contents of this Act are yet to be disclosed. On the morning of October 9th general terms of the Act were disclosed.

The Commission on Presidential Capacity to Discharge the Powers and Duties of Office Act will have provisions which limit the effective date to Presidents and Vice-presidents of the United States to those holding office after January 20 2021 or some other future date. President Trump is excluded from this legislation until after that date. The 25th Amendment with no Commission in the Congress will place the onus for review of disability on the senior management team of the President's own Administration. (See the article above.)

The discussion was beginning to circulate in part due to the president’s conduct since entering Walter Reed, and in part because of concerns about the possible psychological impact of the treatment he is continuing to receive. Former Solicitor General Neal Katyal has noted, “This has 2 important implications: 1) Dexmethasone has side effects, including emotional instability. Not good for someone currently holding launch codes. 25th amendment issues re temporary transfer of power now loom, and 2) if Trump has a severe case, its a 20 day quarantine period, not 10.” Any action will be up to the President's own cabinet.

The text of the 25th Amendment

Section 1

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

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.

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 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.