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3-Minute Civics: The murky waters of the 25th Amendment

For the Monitor
Published: 9/27/2020 6:40:04 AM

While looking up how the media has handled past presidents’ health concerns, I came across an interesting tale in the conservative Washington Examiner titled, “The strange and striking future story of President Joe Biden’s removal from office.”

It’s the one where Biden steps down, his honor intact but cognitive abilities eroded, and the threatened mode of removal – the 25th Amendment – having been withdrawn by his own cabinet.

As if that’s not weird enough, consider the fact that the 25th Amendment is very much a real thing, and it does allow for a majority of the president’s cabinet – his or her inner circle – to seek a president’s removal should they be deemed unable to perform the duties of the office.

Put another way, the Constitution provides a way for there to be a constitutional (and nonviolent) coup d’etat on the executive branch, staged from within the White House.

The Examiner story was from March, though pundits and partisans have been chattering about the 25th for much of President Trump’s time in office. But what exactly does it say – and will we see it invoked?

As for the amendment, it was ratified in 1967, two years after being proposed and four years following the assassination of President John F. Kennedy. There are four sections to it, the first codifying that the vice president becomes president “in case of removal of the President from office or of his death or resignation.”

Who then becomes vice president? Section two leaves it to the president, whenever there is a vacancy, to nominate their second-in-command, pending confirmation by a majority of both the House and Senate.

Things get interesting with Section 3, in that it allows the president to alert Congress, by way of “written declaration,” that “he is unable to discharge the powers and duties of his office,” thereby conferring the powers of the presidency upon the vice president, until the president provides a “written declaration” countering their initial action. We’ve seen this happen once before, in 2002, when President George W. Bush underwent a colonoscopy.

It’s Section 4, though, where we find the seeds of that Examiner story. That’s because that part says that “whenever the vice president and a majority of the principal officers of the executive departments,” otherwise known as the cabinet, or another governing body previously and statutorily identified by Congress, lets Congress know that the “President is unable to discharge the powers and duties” of their office, then “the Vice President shall immediately assume the powers and duties of the office as Acting President.”

Questions over just what that section means have lingered for some time. For example, in the late 1990s one of the chairs of the Working Group on Presidential Disability, Dr. James Toole, expressed concern with what the amendment doesn’t address, such as what considerations are taken into account in determining that Section 4 needs to be invoked or figuring out just how the president is told of the action being taken against them.

It “would require the most extreme conditions for the vice president or members of the cabinet to remove their leader. They have a built-in political incentive to maintain the status quo,” Toole wrote in 1998 for the Dana Foundation, a group dedicated to understanding the brain, “because, if the president is removed, the cabinet that serves him may be replaced as well. Furthermore, these officials are not medical professionals and so cannot have full insight into the dangers of having a mentally impaired leader.”

Whether we’ll ever see the president forced out of the job with the 25th, I think we’ve all come to expect almost anything. But the amendment presents a serious conundrum, according to Toole, because Section 4 also permits the president to inform Congress that “no inability exists,” thereby clearing the way for him or her to “resume the powers and duties” of the office – unless the vice president and a majority of the cabinet, or another congressionally authorized body, tell Congress within four days that the president in fact cannot serve as president. If that happens it would be up to Congress to “decide the issue” within about a month’s time.

In Toole’s words, the fatal flaw of the 25th rests with the potential that a “cognitively impaired President” could “obstruct governmental procedures for removal from office (or to resume office), despite persistent [cognitive] deficits.”

Before anything like that happens we’ll have November’s election, and neither Biden nor Trump believe the cognitive health of their fellow septuagenarian is an asset for their respective campaigns. In light of that, and as a country hardly immune to ill health striking presidents – JFK’s Addison’s disease, FDR’s polio, and Woodrow Wilson’s stroke, to name just a few – the question is less whether another president will fall ill, or worse, and more whether, in unprecedented times, the Constitution is up to the task should it be exercised to keep the nation, and thereby each of us, healthy and safe.

(Adam Krauss teaches social studies at Exeter High School.)


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