What’s This 25th Amendment I Keep Hearing About?

If you’ve been following the news—there’s been a lot it recently—you might have noticed that Rod Rosenstein, the United States Deputy Attorney General at the Department of Justice, allegedly suggested looking into the possibility of removing President Donald J. Trump from office. How? By using the Twenty-fifth Amendment to the Constitution. He’s not the only person who’s talked about it, assuming he did, although he would be the first high-ranking public official to do so.

We summarize the Twenty-fifth Amendment in Fault Lines in the Constitution, along with the other way to legally end a presidency—impeachment. We’d like to recap it here to explain how it works—and why it very likely doesn’t.

This amendment has multiple parts, most dealing with who steps in if the president or vice president dies, resigns, or is removed from office. This process is called the “order of succession.” A key provision, Section Four, allows members of the president’s own administration to eject her or him.

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The Twenty-fifth Amendment was added in 1967, four years after President John F. Kennedy was assassinated. Congress realized that the country could have dissolved into chaos had Kennedy, who died immediately, survived, but in a severely diminished condition. This had happened to two other presidents, James A. Garfield and William McKinley, each of whom lingered, severely disabled, before dying. Woodrow Wilson also suffered a debilitating stroke but remained in office for eighteen months. Mrs. Wilson basically assumed many of the powers of the presidency while he was incapacitated.

To resolve these dangers, Congress proposed the Twenty-fifth Amendment in 1965, and it became part of the Constitution two years later when the thirty-eighth state ratified it. (Three states—Georgia, North Dakota, and South Carolina—have never ratified it.)

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It was first used in 1973, after Vice President Spiro Agnew resigned because of his corruption. Section 2 of the amendment states that when the vice presidency is vacant, the president nominates a replacement, who must be approved by a majority vote in both houses of Congress. President Richard M. Nixon nominated Gerald Ford. Then, when Nixon resigned—so as not to be impeached—Ford became president, and he nominated Nelson Rockefeller to be vice president. (There was a lot of news back then too.)

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Section 3 came into play when two presidents, Ronald Reagan and George H. W. Bush, briefly and voluntarily turned their office over to their vice presidents when the chiefs underwent medical procedures.

Section Four of the amendment is the most complicated part, because it involves involuntary transfer of power. It has never been tried.

The process begins when the vice president, along with a majority of the members of the president’s cabinet or another group chosen by Congress, sends a declaration to the Senate and the House of Representatives stating that the president is “unable to discharge the powers and duties of his office.” Instantaneously, the president loses all of her or his powers, and the vice president becomes acting president.

However, if she’s able to, the ousted president can send Congress her own declaration saying that she’s just fine, thanks—at which point, she gets her job back.

Wait! It’s not over. The vice president and cabinet can go through their rigmarole again, in which case Congress has to assemble within forty-eight hours and, following discussion, vote on the declaration within twenty-one days. If two-thirds of the members of both houses side with the vice president and cabinet, then the president is permanently kicked out of the Oval Office.

The framers of this amendment made it hard to use this process to remove a president in a number of ways.

  1. The phrase “unable to discharge the powers and duties of his office” is not defined. At the time it was written, most of the authors were probably thinking of obvious physical disabilities, such as gunshot wounds or strokes.
  2. Should the disability not be crystal clear, the process requires what many people would describe as a mutiny against the president by her or his own cabinet, joined by members of their party in the Congress. Of course, the president they’re trying to oust can continue to fight back.
  3. A vote in Congress to oust the president requires two-thirds of both houses to agree, which is rare these days. Impeaching the president, on the other hand, requires only a majority of the House and two-thirds of the Senate to proceed, and even that is practically impossible to achieve.

Political opinions in America today are very divided and often bitter. We would need to be in a true crisis situation for this part of the amendment to be used. The Twenty-fifth Amendment attempted to resolve one fault line—an obviously physically disabled president who could not be removed from office. But another fault line remains: what do to about a president whose problems are more in the mind than in the body?

4 comments

  1. Interesting article. Separate question: Why is there an “independent” counsel if the president can simply dismiss the counsel for being too independent? Why is Trump’s appointment of Whitaker legit, given that it seems to be a brazen attempt to squash the powers of the independent counsel?

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    1. Good questions! We’re adding a chapter to the forthcoming new edition on the so-called “unitary executive” that gives the President the right, with very few exceptions (such as the head of the Federal Reserve Board), to fire all high-ranking federal officials at will. This goes back to a tie vote in the Senate in 1789, broken by Vice-president John Adams, depriving the Senate, which of course has to confirm high-level officials, of a say in their “removal” by the President. By and large, the constraints on such removals (or firings) are far morepolitical than legal.
      As to Whitaker’s appointment, there is a serious argument that it is illegal because he had not been confirmed by the Senate for the current job from which he is being promoted. At least two suits have been filed so far
      asking courts to invalidate the appointment. Stay tuned….

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  2. It’s quite deliberate that the 25th amendment is much harder than impeachment in cases where the President is capable of disputing his incapacity. It really isn’t meant to facilitate overturning elections, which is the application the people talking about it today have in mind.

    This raises an interesting question: Since the 25th amendment IS more difficult than impeachment, why exactly is anybody proposing it? Ignorance of the details? An irrational conviction that the President’s political allies share his enemies’ low opinion of him?

    “But another fault line remains: what do to about a president whose problems are more in the mind than in the body?” is something of a pretext in the immediate instance, I think. Policy and style disagreements are being treated as mental impairment. This sort of thing has an ugly history in the USSR, I’m not enthusiastic about the effort to import it to the US.

    An interesting point is that a President could, immediately after regaining his powers by disputing his cabinet, fire the officers who’d tried to remove him. So getting to that second stage where Congress decides the matter is even harder than you describe. This can’t be properly remedied by having Congress appoint a body more remote from the President’s reach, because they would have less direct exposure to the President, and so less basis for arriving at an informed opinion of his fitness.

    Best to just accept that the 25th amendment isn’t really intended for cases where a President retains enough capacity to dispute his removal. That’s properly done through impeachment, not pretending the President is incapacitated.

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    1. These are excellent points, Brett. Thank you for the reminder that Russians charged dissidents with insanity. We definitely do not want to go there.

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