Some constitutional facts you learned in high school U.S. history probably left a lasting impression. For example, the 13th Amendment abolished slavery, and the 19th Amendment afforded women the right to vote. But even the most dedicated scholars can have trouble keeping track of all 27 amendments to the Constitution. But what about the 25th Amendment?
It's a rarely used — somewhat controversial — process written into the Constitution as a way to remove the U.S. president from office in case of death or resignation. It allows the vice president to become president. But it's not as straightforward as it might sound.
What Is the 25th Amendment?
Proposed by Congress and ratified by the states following, the 25th Amendment provides the procedures for replacing the president or vice president in case of death, removal, resignation or incapacitation. The 25th Amendment was created during the Cold War following President Dwight D. Eisenhower's three serious illnesses and President John F. Kennedy's 1963 assassination.
Eisenhower originally entered into a letter agreement that stated if his health impeded his ability to run the country, power would be transferred to his vice president, Richard Nixon. This led to the official amendment that clarified the rules around transfer of power in the event of an incapacitated president. After numerous congressional hearings, the final version passed the House and Senate in 1965, and was ratified on Feb. 10, 1967.
There are four sections to the 25th Amendment:
- Section 1 stipulates that the vice president will assume the role of president in case of death or resignation.
- Section 2 covers the event of a vacancy in the office of the vice president; in such a case, the president is responsible for nominating a candidate who must be confirmed by a majority vote of both Houses of Congress. The history of Section 2 ensures there is both a president and vice president at all times.
- Section 3 states that the president has the discretion to declare his own inability to carry out the job, and allows him to temporarily cede power to the vice president. It makes it clear, however, that the vice president does not assume the office or title of president.
- Section 4 has, to date, never been implemented, but it's the piece of the amendment currently receiving media attention. The language empowers the vice president and the cabinet to declare a president "incapacitated":
Section 4 addresses the problem of a president who is unable or unwilling to acknowledge his or her inability "to discharge the powers and duties" of the presidency. It would be used most likely if a president falls unexpectedly unconscious, though it also clearly applies when a president is "incapacitated" because of some other mental or physical inability.
How It's Implemented
History buffs may recall the invocation of the 25th Amendment because of the Watergate scandal in the 1970s. President Nixon invoked it to replace resigning vice president Spiro Agnew with Gerald Ford; then when Ford replaced Nixon as president, Ford invoked it to appoint Nelson Rockefeller to succeed him as vice president.
It was also considered several times during the administration of Donald Trump — very early in his administration, and then again in October 2020 after Trump tested positive for coronavirus. At that time, Speaker of the House Nancy Pelosi said she was concerned about Trump's erratic behavior, suggesting he was in an "altered state" and may have "some impairment of judgment." It was, however, never invoked.
That's likely because, in order for Section 4 to be implemented, the vice president and a majority of "the principal officers of the executive departments" must declare the president incapacitated in a written statement to the Speaker of the House of Representatives and the president pro tempore of the Senate. Once that happens, presidential powers are automatically transferred to the vice president.
In order for Congress to successfully declare a president "disabled," two-thirds in each chamber must conclude that he "is unable" to handle the office.
Could the 25th Amendment Be Applied Today?
The disability clause of the 25th Amendment has been invoked multiple times since ratification. Presidents Bill Clinton, George W. Bush and Ronald Reagan invoked it during medical procedures, though it was never used when Reagan was shot in 1981.
However, Section 4 has never been invoked to remove a president from office. John Hudak, deputy director for Center for Effective Public Management and senior fellow for governance studies at the Brookings Institute writes that the process "is more difficult than impeachment and is reserved only for truly unique and dire circumstances."
Concerns for implementing the 25th Amendment were raised again after a violent pro-Trump mob stormed the U.S. Capitol on Jan. 6, 2021 to protest a joint session of Congress to certify Joe Biden and Kamala Harris' electoral vote. The violence forced both chambers of Congress to go into recess. Four people died. This was the first time in American history that the U.S. Capitol was overrun by its own citizens. In 1814, the British attacked and burned the Capitol during the War of 1812.
More than 1,100 members of the D.C. National Guard had to be mobilized to support the local D.C. police. However, it was Vice President Pence, not Trump, who fully activated the D.C. National Guard, according to a press statement from acting Defense Secretary Christopher Miller.
Trump's lack of response to the violence, and the taunting nature of some of Trump's tweets on Jan. 6 — both before and after the rioters stormed the Capitol — set off alarm bells once again about his mental stability. Twitter locked down Trump's account for 12 hours, saying they violated its Civic Integrity or Violent Threats policies.
Several Democratic leaders, including presumptive Senate Majority Leader Chuck Schumer, have said publicly they think Trump should be removed before the Jan. 20, 2021 inauguration.
"The quickest and most effective way — it can be done today — to remove this president from office would be for the vice president to immediately invoke the 25th amendment," Schumer said. "If the vice president and the cabinet refuse to stand up, Congress should reconvene to impeach the president."
Republican leaders have called for it as well, including Republican Rep. Adam Kinzinger of Illinois who said "It's time to invoke the 25th Amendment and end this nightmare," in a video he published online. Kinzinger called on Vice President Pence and the Cabinet to invoke the 25th Amendment to ensure "we have a sane captain of the ship" because Trump has become "unmoored not just from his duty or even his oath, but from reality itself."
But because the majority of Trump's Cabinet would need to support the president's removal, many speculate the invocation of the amendment this late in the Trump presidency isn't realistic at all.
Originally Published: Jan 8, 2018