September 7, 2018
Suddenly, the 25th Amendment has everyone buzzing inside, and outside, the beltway. Academics, pols and “talking-heads” are all scrambling to make sense out one of America’s most recent constitutional Amendments.
The First Amendment is always in the news, the Second Amendment has taken on a much more prominent role than even the founders intended and the Fourth, Fifth and Sixth Amendments are notable for protecting individual rights, but the 25th Amendment?
What is all the fuss? Thanks to Bob Woodward and his new book “Fear” and a startling, anonymous op-ed in the New York Times — the possibility of replacing the president has become a topic of interest.
The 25th Amendment to the U.S. Constitution addresses what happens to the presidency, and vice presidency, if the president and/or vice president dies, resigns or becomes incapacitated or disabled.
About two years after the assassination of President John F. Kennedy, Congress recommended a succession amendment. On Feb. 23, 1967, President Lyndon B. Johnson, who ascended to the presidency upon Kennedy’s murder, signed the 25th Amendment into law.
Succession has been a problem since the infancy of America. The original Constitution allowed for the vice president to become acting president if the president died.
That wasn’t good enough for John Tyler who became “Vice President Acting President” in 1841 when President William Henry Harrison became the first president to die in office.
Tyler moved into the White House and assumed full presidential powers, including giving an Inaugural Address. He soon fell out of favor with the Whig Party and they expelled him. Without a party, his entire Cabinet resigned except for the Secretary of State. In time, Tyler was the first target of impeachment — and we think things are bad now.
The first three sections of the 25th Amendment are straightforward. First, if the president dies or resigns — think Richard Nixon — the vice president takes over. Second, if the vice president dies or resigns — think Spiro Agnew — the president appoints a replacement approved by Congress. Third, if the president informs the president pro tempore of the Senate and the speaker of the House in writing that he may be temporarily incapacitated — think assassination attempt on Ronald Reagan or colonoscopies for George W. Bush — the vice-president becomes the acting president.
Section 4 of the 25th Amendment is a little trickier.
“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.”
Section 4 of the 25th Amendment has never been used, although officials considered invoking the section after the 1981 assassination attempt on Reagan.
However, like impeachment or indictment, the president has Due Process rights. The president can challenge the declaration of incapacity. If he or she does, the vice president and other administration officials must reassert the claims or the president resumes his authority.
If the claim is reasserted then Congress must decide the issue. Within 21 days of assembling, Congress must vote with a two-thirds majority of both houses that the president is unable to fulfill his constitutional responsibilities as president.
If the two-thirds super-majority is not met in both houses of Congress “the president shall resume the powers and duties of his office.”
What are the chances of invoking the 25th Amendment under current circumstances? The president is Republican, the House is Republican and the Senate is Republican — you don’t have to be competent to figure that out.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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