BY: Lauren Scarff
Lauren Scarff is a junior in the School of Foreign Service studying International Politics. She is currently a managing editor for the Georgetown University Undergraduate Law Review.
In the aftermath of the insurrection and violence in the Capitol on January 6th, many citizens and lawmakers have called on Vice President Mike Pence to invoke the 25th Amendment to remove President Donald Trump from office.[1] The 25th Amendment is one of the newest amendments to the U.S. Constitution and has rarely been invoked in U.S. history.[2] This moment in time offers a unique opportunity to examine the 25th Amendment’s history, purpose, and current significance.
Drafting of the 25th Amendment began in 1955 as President Eisenhower was recovering from a heart attack. Eisenhower was affected not only by his own health scare, but also by the serious illnesses other presidents had experienced. For example, Woodrow Wilson served the final months of his term incapacitated from a stroke he had suffered in 1919.[3] These concerns over the potential chaos that may ensue should a sitting president ever be unable to perform his duties drove Congress to finally pass the 25th Amendment in 1965, but only after the tragic assassination of John F. Kennedy emphasized the need for such an amendment. The 25th Amendment was ratified in 1967.[4]
The purpose of the 25th Amendment is to assure there is never any confusion over who is acting as president, and the amendment achieves this in four sections.[5] The first section outlines that should a president be removed, the vice president will take his or her place. The second section delineates how presidents should resolve a vacancy in the vice presidency. The third section allows the president to temporarily appoint the vice president as the acting president. Finally, the fourth section, the most relevant given recent events, creates a process through which the vice president and the president’s cabinet can remove a sitting president.[6] The first three sections of the 25th Amendment have previously been invoked; however, the fourth section has never been used since the amendment was ratified.[7]
The fourth section of the 25th Amendment states that if the vice president and a majority of the president’s cabinet submit to the President pro tempore of the Senate and the Speaker of the House of Representatives a written statement declaring that the president is “unable to discharge the powers and duties of his office,” the vice president will assume the position of acting president.[8] This may appear to be the easiest way to remove a president from office; however, section four also indicates that should the president affirm that he or she is, in fact, able to carry out his or her duties, he or she then can resume office. The president can only be officially removed if the vice president objects to the president’s assertion that he or she is fit for office, and two-thirds of Congress votes to support this objection.
There are a few interesting textual ambiguities that have been recently misconstrued by the media and others. The first of which being what was meant by “unable to discharge the powers and duties of his office.”[9] Senator Birch Bayh, one of the authors of the 25th Amendment, made it abundantly clear in debates that the 25th Amendment was not to be used for political or partisan purposes. Senator Bayh believed that the amendment should only be used “if the President was as nutty as a fruitcake. Mental illness, pure and simple, is the only time this provision would be used.”[10] The 25th Amendment was never intended to be an easier way to impeach and remove a president or to remove a president on the grounds that he or she is disliked.
The second ambiguity of the amendment comes in the process in which a president could assert that he or she is fit for office and reclaim power. One reading of this portion of the amendment indicates that there would be multiple transitions of power from the president, to the vice president, back to the president, and potentially back to the vice president if the vice president chooses to object to the president’s ability to fulfill his or her duties. This interpretation could result in a constitutional crisis as the president and vice president each claim power over the White House and the military.[11] The intention of the text, however, is that the president only reclaims power if the vice president does not object. The text states “the President […] shall resume the powers and duties of his office unless the Vice President [objects].”[12] This means that after the vice president initially assumes the role of acting president, he or she will continue in that role until Congress votes on whether or not to support the vice president’s objection to the president’s ability to be in office.
At these crucial points in the history of the United States, it is important to consider and understand the processes put in place to protect American democracy. Lawmakers, the media, and citizens are all vulnerable to misinterpretations of legislation; however, at critical moments, misinterpretation can lead to constitutional crises. The only way to prevent this is to understand the history, purpose, and pitfalls of pieces of legislation.
[1] Miles Parks, “What the 25th Amendment Says About Removing a Sitting President,” NPR (Jan. 7, 2021, 2:15 PM), https://www.npr.org/sections/insurrection-at-the-capitol/2021/01/07/919400859/what-happens-if-the-president-is-incapacitated-the-25th-amendment-charts-a-cours.
[2] Chloe Jones, “What is the 25th Amendment and what could it mean for Trump?” PBS (Jan. 8, 2021, 1:58 PM), https://www.pbs.org/newshour/politics/what-is-the-25th-amendment-and-what-could-it-mean-for-trump.
[3] Erin Blakemore, “Calls to Replace Trump via the 25th Amendment are growing. Here’s why it’s never happened before,” National Geographic (Jan. 7, 2021), https://www.nationalgeographic.com/history/2021/01/calls-to-replace-trump-25th-amendment-growing-heres-why-never-happened-before/#close.
[4] Parks, supra note 1.
[5] Brian C. Kalt, “The Entire Point of the 25th Amendment,” The Atlantic (Jan. 8, 2021), https://www.theatlantic.com/ideas/archive/2021/01/25th-amendment-section-four/617603/.
[6] U.S. Const. amend. XXV.
[7] Blakemore, supra note 3.
[8] U.S. Const. amend. XXV § 4.
[9] U.S. Const. amend. XXV § 4.
[10] Birch Bayh, One Heartbeat Away: Presidential Disability and Succession 283 (1968).
[11] Kalt, supra note 5.
[12] U.S. Const. amend. XXV § 4.
