Following the Jan. 6 demonstrations in Washington, D.C. and the totally patriotic (and not domestically terroristic, or riotous in any way) storming and occupation of the U.S. Capitol, I’m hearing many people call for the invocation of the 25th Amendment. What is it, what does it do, and how does it work? (I’m asking for a friend.)
— Donald T., Washington, D.C.
Thank you for your timely question, D.T.! The 25th Amendment to the Constitution of the United States, commonly referred to as the Disability Clause, provides a framework to remove a sitting president from office before the end of their term, either willingly or unwillingly. It defines when and how the vice president becomes president if a sitting president dies while in office, resigns, or is removed from office.
The Amendment was drafted in 1965 in the wake of the assassination of President John F. Kennedy. Following Kennedy’s assassination, Lyndon B. Johnson was sworn in as the next President on Air Force One in Dallas, Texas. However, there needed to be a more formal set of Constitutional guidelines in place to govern such circumstances. The draft amendment was submitted to the states by Congress for approval and was formally adopted as an amendment to the Constitution on Feb. 10, 1967.
There are four sections within the 25th Amendment. The first three sections address what is to happen in the case of the president’s death, a resignation, or an incapacitation that the president acknowledges. The fourth section addresses an incapacitation of the president that he (or she!) is unwilling or unable to acknowledge. Essentially, it codifies the process of removing a president from office against their will. It would seem that for purposes of this discussion it is the fourth section that applies most directly to your specific circumstances — that is, uh, question — Donald.
The bipartisan allegation has been made that our outgoing president purposefully instigated his supporters to take the Capitol by force, that he aided and abetted a terrorist attack on the United States, that he encouraged it while it was happening, and that this is evidence of his unfitness for office. Many people are saying that he is a clear and present danger to the United States and must be removed from office immediately.
The fourth section of the 25th Amendment provides the framework and process by which this could be accomplished. Theoretically the fourth section allows the vice president, along with a simple majority of members of the president’s Cabinet (secretary of state, secretary of defense, secretary of labor, etc.) to make the determination on their own that the sitting president is in some manner disabled to the point of being no longer capable of performing the functions of the office in a competent manner. However, it is important to note that it has never been enacted against a sitting president’s will. There is no precedent in American history for what our nation currently faces: the possibility of removing a sitting president from office who is conscious, otherwise fully ambulatory, and does not want to go.
The 25th Amendment has only been invoked a few times in our nation’s history. Most recently it was called upon for such a mundane thing as former President George W. Bush being under sedation for a colonoscopy. The powers of the office, if not the title, were thereby transferred to then-Vice President Dick Cheney for a few short hours. The 25th Amendment was not enacted, however, in 1981 following an assassination attempt on President Ronald Reagan, who was under sedation and incapacitated for a much longer period of time than one would be for a routine colonoscopy. Reagan’s doctors later stated that the situation had most definitely called for the enactment of the 25th Amendment’s provisions for a period of several days.
It is also important to note that — similar to the question of whether you — erm, a sitting president — can issue a self-pardon for federal crimes, the fourth section of the 25th Amendment has never been tested in the courts. It simply never has been attempted. However, the fourth section of the amendment does provide a Constitutional framework for doing so.
The first paragraph of Section Four reads as follows, “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.” This single sentence provides for the Constitutional removal of the president of the United States of America from office against his (again, or her) will.
It would require what would essentially be a letter signed by Vice President Mike Pence, and 11 or 12 members of the president’s Cabinet, attesting under penalty of perjury that President Donald Trump is no longer capable of performing the duties of the Office of the President. They would deliver a copy to the Senate and a copy to House Speaker Nancy Pelosi. Thereafter, Pence would be immediately sworn in as acting president, thus ending the presidency of Donald. J. Trump — that neighbor of yours out there in Washington, D.C.
Regardless of whether the provisions of the 25th Amendment are enacted in these current circumstances, at noon on Jan. 20, Joseph R. Biden and Kamala D. Harris will be sworn in as president and vice president, respectively.
Hope that clears things up for you, D.T.
Christopher B. Dolan is the owner of the Dolan Law Firm, PC. Matthew D. Gramly is a Senior Associate Attorney based in our San Francisco office. Email questions and topics for future articles to: firstname.lastname@example.org.