GateHouse Media
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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