Understanding The 25th Amendment

Ben Douglass
Sep 8, 2018 · 5 min read

There is lots of talk these days by the opposition of invoking the 25th Amendment to the Constitution for the purpose of removing President Trump from office.

Media talking heads, opposition politicians, as well as a few so-called “legal scholars” have been engaging in this discussion. Let me be perfectly blunt and straightforward here: There are only four ways to get President Trump out of the White House: 1.) Death, 2.) Resignation, 3.) Impeachment by the House and removal by trial in the Senate, and 4.) Losing the 2020 Presidential Election.

Those whole continue using the 25th Amendment as a tool to remove the President from power, either are grossly misinformed or engaging in deliberate political distraction.

I don’t pretend to be a constitutional scholar but any intelligent person with above average reading skills can read the amendment in it’s entirety for themselves, and quite frankly, can figure out what’s being stated. It is rather black and white, because it is a recent amendment (1967) written in modern day usage.

There are four separate sections to this amendment but for our purposes here, we will deal only with “section four,” which has everybody and their brother & sister talking:

Section 4: “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.

“Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determine by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”

Ray Raphael offers a scholarly analysis of the above amendment, especially “Section 4.” Mr. Raphael, having taught at Humboldt State University and College of the Redwoods, he is currently developing teaching tools for the Constitutional Sources Project (ConSource) and serving as an associate editor for the “Journal of the American Revolution.” He lives in Northern California. His words on this important amendment are as follows, taken from his book, The U.S. Constitution:

“The Twenty-Fifth Amendment resolves an ambiguity in Article II, Section 1, Clause 6 of the Constitution: When assuming the powers and duties of the presidency, does a vice president do so as an acting president or as an actual president, one entitled to remain in office for the remainder of the four-year term? (Historically, vice presidents had become actual presidents upon the death of their predecessors, but that was nowhere stated in the Constitution.) Section 1 states that the vice president becomes an actual president if the sitting president either dies or resigns, while Section 3 stipulates that if a president declares to Congress that he is unable to discharge the powers and duties of the office, the vice president serves only as an Acting President. Before President Ronald Reagan underwent elective surgery in 1985, he officially passed the office to Vice President George H.W. Bush, who served as an acting president for less than eight hours. These provisions are straightforward, as is Section 2, which stipulates how a new vice president is to be selected if the office becomes open.

“Section 4 is more complicated. What happens if a president is unfit to serve yet cannot declare that? In 1881, President James A. Garfield, shot by an assassin, was in and out of a coma for seventy-nine days before dying; during that time, Vice President Chester A. Arthur did not command the office of the president. If a similar event happened now, the vice president, with support from either the cabinet or some other body of Congress’s choosing, could become the Acting President until the president either dies or becomes able to resume the duties of the office.

“Imagine, however, that a president becomes incapacitated but does not realize it or refuses to acknowledge it. In 1987, during President Reagan’s second term, he ceased reading briefs and spent much of his time watching movies, which concerned some of his aides. Chief of Staff Howard Baker set up a test situation, a luncheon, where he and other Reagan associates were to scrutinize the president’s behavior for signs of incompetence. Reagan performed well and was deemed fit for office. what if he had not passed this test? Vice President Bush could have convened the cabinet, submitted a declaration to Congress, and immediately assumed the duties of the presidency, although only as an Acting President — but if Reagan believed he was fully capable, he could simply declare as much and resume his duties. At this point, to dislodge the president, the burden of proof would be on the vice president and either the cabinet or another body designated by Congress. In such a ‘contested removal,’ as it is called, the final arbiter is Congress and the bar is high: a two-thirds supermajority, as with an impeachment trial in the Senate.

“The framers hadn’t accounted for an incapacitated president. Had they done so, they probably would not have granted the vice president a lead role in a procedure that could elevate him to the presidency. But those who drafted the Twenty-Fifth Amendment did not want the process to be politicized and determined that any move to dislodge a president for incapacity had to emerge from within his own part.

“This amendment was already under discussion when John F. Kennedy was assassinated in 1963. That tragic event provided a sense of urgency: What would have happened if Kennedy had survived but lay in a coma like President Garfield? Ratification was swift and almost unanimous: forty-seven states in less than two years.”

It is a sad commentary on our political leadership and even the Media who spread misinformation about the 25th Amendment because they haven’t yet or refuse to actually read the thing. Lots of misguided speculation would disappear overnight simply by a thoughtful reading of this complex amendment. As I stated before, there are clear ways for the removal of our current President from power. The 25th Amendment is NOT one of them.

Ben Douglass

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An "Indie" author from PDX who enjoys writing stories, narrative poems and essays that amuse himself and others.