CREATORS: How Does The 25th Amendment Protect Democracy?

Matthew T. Mangino
CREATORS
July 15, 2026

A 2016 article in Psychology Today explored whether having a mental illness would make it difficult for a candidate to get elected president. The author, Guy Winch, Ph.D., cited a study by Jonathan Davidson of Duke University Medical Center that found that of the first 37 U.S. presidents, "half of those men had been afflicted by mental illness — and 27% met those criteria while in office, something that could have clearly affected their ability to perform their jobs."

The study found that 24% of presidents met the diagnostic criteria for depression, including James Madison, John Quincy Adams, Franklin Pierce, Abraham Lincoln, and Calvin Coolidge.

Davidson and his team also found evidence of anxiety disorders, bipolar disorder and alcohol dependence among sitting presidents.

Although the 25th Amendment to the U.S. Constitution can prevent an incompetent president from remaining in office, the amendment was not created specifically for that purpose.

The 25th Amendment 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 former President John F. Kennedy, Congress recommended a succession amendment. On Feb. 23, 1967, former President Lyndon B. Johnson, Kennedy's successor, who, by the way, may have suffered from bipolar disorder, signed the 25th Amendment into law.

Imagine in 1867 or 1967 if the president made a profane-laced statement in reference to Iran that "a whole civilization will die tonight," or a president who frequently naps at meetings took on the Pope as "WEAK on crime, and terrible for Foreign Policy." Is an 80-year-old, at times rambling, president with — as noted by The Hill — dark, unexplained bruising spanning the back of both hands — appropriate for the 25th Amendment consideration?

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 former 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.

The first few 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.

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, 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."

For now, there is little chance of invoking the 25th Amendment. The President is Republican, the House is Republican, the Senate is Republican and the Vice-President is a sycophant. There are other options — the midterms are just months away ... a dramatic power shift is not out of the question.

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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What happens if Donald Trump is elected from prison?

According to The New York Times, “We’re so far removed from anything that’s ever happened,” said Erwin Chemerinsky, a constitutional law expert at the University of California, Berkeley. “It’s just guessing.”

Legally, Mr. Trump would remain eligible to be president even if he were imprisoned. The Constitution says nothing to the contrary. “I don’t think that the framers ever thought we were going to be in this situation,” Professor Levinson said.

In practice, the election of an incarcerated president would create a legal crisis that would almost certainly need to be resolved by the courts.

In theory, Mr. Trump could be stripped of his authority under the 25th Amendment, which provides a process to transfer authority to the vice president if the president is “unable to discharge the powers and duties of his office.” But that would require the vice president and a majority of the cabinet to declare Mr. Trump unable to fulfill his duties, a remote prospect given that these would be loyalists appointed by Mr. Trump himself.

More likely, Mr. Trump could sue to be released on the basis that his imprisonment was preventing him from fulfilling his constitutional obligations as president. Such a case would probably focus on the separation of powers, with Mr. Trump’s lawyers arguing that keeping a duly elected president in prison would be an infringement by the judicial branch on the operations of the executive branch.

On the federal charges only, he could also try to pardon himself — or to commute his sentence, leaving his conviction in place but ending his imprisonment. Either action would be an extraordinary assertion of presidential power, and the Supreme Court would be the final arbiter of whether a “self pardon” was constitutional.

Or President Biden, on his way out the door, could pardon Mr. Trump on the basis that “the people have spoken and I need to pardon him so he can govern,” Professor Chemerinsky said.

But that wouldn’t apply to the New York or Georgia cases, because the president does not have pardon power for state charges.

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WAPO: There’s an alternative to impeachment or 25th Amendment for Trump, historians say

As a pro-Trump mob stormed the Capitol last week, Eric Foner, one of the nation’s premier Civil War historians, watched in horror, reported the Washington Post.

“I was watching just like anyone else, with my mouth hanging open,” he said in an interview.

But his mind quickly shifted to history, specifically the little-known history of a little-known provision of the 14th Amendment of the U.S. Constitution.

The 14th Amendment, ratified in 1868, is most famously known for providing citizenship and equal protection under the law to anyone born or naturalized in the United States, including formerly enslaved and free Black people.

But as calls emerged almost immediately for President Trump’s ouster and ban from office via the 25th Amendment or impeachment — neither course is expeditious or easily accomplished — Foner began pondering a different remedy provided by Section Three of the amendment, which says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

“Nobody really had heard about this except people like me who study this era,” said Foner, a Columbia University professor and author of numerous books on the Civil War, Reconstruction and Abraham Lincoln. “And then I had other historians emailing me saying, ‘Wouldn’t Section Three apply here if Trump is guilty?’ ”

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GateHouse: The 25th Amendment doesn’t solve all problems

 Matthew T. Mangino
GateHouse Media
October 9, 2020

Last week, the campaign for president displayed for the world to see America’s vulnerabilities. Setting aside a presidential debate that depicted the leader of our country as an unhinged bully who refuses to denounce white supremacy and, more importantly, a man who flaunts health protocols during a pandemic and contracts COVID-19.

What happens if the president’s condition worsens or the vice president tests positive?

The 25th Amendment to the U.S. Constitution provides the framework for succession if something happens to the president or vice president. The amendment was ratified in 1967 and addresses death, incapacitation or resignation of the president or vice president.

The 25th Amendment is about more than succession.

Section 3 of the amendment allows the president to transfer power voluntarily to the vice president. The president can send formal notice to the speaker of the House and president pro tempore of the Senate, declaring that he is “unable to discharge the powers and duties of his office.” The vice president immediately becomes acting president. Once the president is fit to resume power, he or she would issue a new declaration and take back control. President George W. Bush used Section 3 a couple of times when he went under anesthesia for medical procedures.

Section 4 is a bit more controversial. Section 4 provides that when the vice president and a majority of a body of Congress declare in writing to the president pro tempore of the Senate and the speaker of the House that the president is unable to perform the duties of the office, the vice president immediately becomes acting president.

The original Constitution also provided that the vice president steps in when the president is incapacitated, but it said nothing about how the president’s incapacity was to be determined.

That loophole, prior to the enactment of the 25th Amendment, permitted President James Garfield’s advisors to remain in control for 79 days after he was shot and President Woodrow Wilson’s wife to essentially run the country after Wilson had a stroke.

As Norman Ornstein, of the American Enterprise Institute, wrote in the Washington Post, “the 25th Amendment has its own gap” that would become problematic if both the president and vice president became incapacitated at the same time.

Ornstein uses President Trump’s recent illness as an alarming example. If the president and vice president became ill and their conditions worsened - the 25th Amendment provides no solution. The amendment provides for replacing the vice president and dealing with a presidential disability, it did not contemplate or provide a road map if both the president and the vice president were incapacitated.

Ornstein writes, “There is no path in law or the Constitution to determine who has presidential authority if both are, say, on ventilators.”

The election also creates potential problems. The 20th Amendment provides for the vice president-elect to become president if the president-elect dies or is debilitated. However, that is after the election. What happens if a candidate for president dies immediately before the election?

The Constitution provides that the president-elect shall assume office on Jan. 20. Can a dead person be elected president? The answer is simple, yes.

In each state voters will turn out on Nov. 3 to vote for a presidential ticket, president and vice president. What their votes actually do is determine which candidate wins the state and receives the state’s electors to the Electoral College.

Although the U.S. Supreme Court recently said electors can be bound to the candidate that won their state, the decision does not apply when the candidate dies before the election.

If no one gets a majority in the Electoral College, the election goes to the U.S. House of Representatives to decide.

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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GateHouse: Shame at the border

Matthew T. Mangino

GateHouse Media

July 26, 2019

It is a federal crime to assist, aid or abet an undocumented person illegally crossing the border. The law makes sense when used to thwart “Coyotes,” those who smuggle undocumented migrants across the Mexico-U.S. border. Coyotes charge refugees exorbitant fees to help facilitate the dangerous and illegal crossings.

However, the use of federal law to arrest and prosecute humanitarians who seek to help other human beings in peril as a result of their decision to seek refuge in the U.S. seems callous and un-American.

For instance, Scott Warren, a college geography instructor from Ajo, Arizona, left food and water for migrants - no one specific, just hungry, thirsty migrants traversing the Arizona desert.

According to NPR, Warren was arrested in 2017 and faces three felony counts including conspiracy to transport and harbor migrants.

Teresa Todd, a lawyer, is under investigation for pulling her vehicle over in Texas and letting a man and his very ill 18-year-old sister sit in her car while she sought guidance on how she could help the two undocumented migrants.

A sheriff’s deputy pulled up and now Todd faces possible indictment. The sheriff of Presidio County, whose deputy called the Border Patrol, defended the action against Todd. He told NPR that any person with undocumented migrants in their car risks arrest.

Manisha Sinha, recently wrote in the New York Review of Books, “Today, in criminalizing the provision of humanitarian assistance to migrants we have resurrected the fugitive slave laws of antebellum America. Just as abolitionist activists were once targeted, human rights activists have found themselves in the sights of the Trump administration.”

The media is replete with stories of refugees or asylum seekers being detained, housed in deplorable conditions and even families being separated. Refugee status or asylum may be granted to people who have been persecuted, or fear they will be persecuted, because of race, religion, nationality, and/or membership in a particular social group or political group. Refugee status is sought upon leaving a country and asylum is sought upon entering a new country.

The idea of illegal migrants pouring into the country and taking American jobs, committing crime and spreading disease is fantasy.

More than 60% of immigrants in the United States today have lived here for at least 15 years, and the large majority - 76% - of immigrants have lawful status. Of the approximately 43.7 million immigrants in the U.S. in 2016, 20.2 million were naturalized citizens, reported the Pew Foundation.

The idea that the Trump administration is rounding up illegals and sending them back is not consistent with the data. Approximately 295,000 immigrants were deported from the U.S. in fiscal 2017, the lowest number since 2006. Overall, the Obama administration deported about 3 million immigrants between 2009 and 2016, a significantly higher number than the 2 million immigrants deported by the Bush administration between 2001 and 2008, according to Pew.

Instead of deportation the Trump administration insists on discouraging migrants from seeking asylum through dehumanizing tactics such as detaining refugees without bail - keeping thousands in jail indefinitely while they wait for the resolution of their asylum requests.

As the number of refugees at the border continues to grow, the administration is looking for places to detain refugees and asylum seekers fleeing the strife and persecution in their home countries.

The Trump administration’s decision to use Fort Sill, Oklahoma as a refugee internment camp is the best example of the dangerous path the U.S. is heading down. As Sinha pointed out in the New York Review of Books, “Fort Sill symbolizes a bloodline of state-sponsored cruelty throughout American history, first as a reservation for dispossessed Native Americans, then as an internment camp for Japanese-American citizens during World War II” and now as a refugee internment camp.

Philosopher George Santayana, wrote, “Those who cannot remember the past are condemned to repeat it.” Whether this president doesn’t know, or doesn’t care, America is repeating some of the most shameful episodes in its history.

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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PA Legislature to review probation and parole

A bipartisan effort in the state Senate to reform Pennsylvania’s probation and parole laws will get some new insight next week from more than a dozen experts, reports the Pennsylvania Capital-Star.

On Tuesday and Wednesday, the Senate Judiciary Committee, chaired by Sen. Lisa Baker, R-Luzerne, will hold a public hearing on Pennsylvania’s parole and probation systems, which supervise offenders and newly released prisoners living in their communities.

The committee will hear from more than a dozen stakeholders in the probation and parole debate, including county district attorneys, criminal defense lawyers, and advocacy groups like the American Civil Liberties Union, and the Reform Alliance, which is chaired by Philadelphia rapper and probation and parole reform advocate Meek Mill.

Representatives from state Department of Corrections, the Office of the Victim Advocate, and the Sentencing Commission will also offer testimony.

“What you’ll see are people on all different sides of the issue,” said Mike Cortez, a top aide to Baker and the Judiciary Committee.

Cortez acknowledged it’s an unusual time to devote so much attention to a single policy matter, given that leaders in the House and Senate are scrambling to finish Pennsylvania’s 2019-20 budget by the end of June.

But he also said the Judiciary Committee is eager to hear solutions to fix Pennsylvania’s expensive and punitive supervision programs.

“It’s incredibly important,” Cortez said. “The hearing will be a sounding board to figure out what we can do, what we can’t do, and if there are ways we can move bills forward.”

Probation and parole laws are meant to cut costs and reduce prison populations. But a newly released report suggests the opposite is true in many states.

Pennsylvania spent $100 million to arrest and incarcerate people who committed technical violations of parole — infractions like missing a meeting with a probation officer or failing a drug test — according to a report from the Council on State Governments, a non-partisan public policy research institute.

The state spends an additional $200 million incarcerating people who commit new crimes while on probation or parole.

As a result, more than half of the people sent to prison in Pennsylvania are brought in because of a technical violation of parole. Some may not stay for long, but on a given day, 7,000 of the state’s inmates are incarcerated for parole violations.

The high social and economic costs of probation and parole have put the programs in the crosshairs of criminal justice reformers in the state Senate, which recently passed a package of bills aimed at cutting corrections costs and reinvesting savings in public safety initiatives.

A comprehensive probation and parole reform bill could be next on their agenda, Cortez said.

The Judiciary Committee will also discuss a bill from Sens. Camera Bartolotta, R-Washington , and Sen. Anthony Williams, D-Philadelphia, that would minimize technical violations and cap probation terms.

Pennsylvania is one of only eight states that puts no limit on how long someone can serve probation.

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TCR: Risk Assessment: Should Youth Be a Factor in Judging ‘Dangerousness’?

Matthew T. Mangino

The Crime Report

January 9, 2019

This summer, the Pennsylvania Commission on Sentencing is expected to roll out a “risk assessment” tool for use by judges when sentencing offenders, fulfilling a mandate first commissioned by Gov. Ed Rendell back in 2010.

Incorporating risk assessments into sentencing in Pennsylvania has been a long time coming.

Giving judges more information about an offender’s background and his or her propensity for future violence is thought to enhance a jurist’s ability to make informed decisions that incorporate the core elements of sentencing: appropriate punishment, public safety and rehabilitation.

The Commission’s report would include an assessment with a scale from 0 to 18 points. The higher the score, the more likely the person being sentenced will reoffend.

An offender’s criminal record has long been a part of the sentencing process. In Pennsylvania, current sentencing guidelines take into consideration an offender’s criminal record. The longer the criminal record, the more severe the range of potential sentences.

But according to PublicSource.org, in addition to the information that has routinely been available to judges—prior record, seriousness of the offense and guidelines—the Commission on Sentencing is weighing whether judges should also be provided with a report to predict the offender’s future dangerousness.

Predicting the likelihood that an offender might offend again is highly controversial.

“This would represent a shift in punishing a person for what they did do, to what a person might do,” Mark Houldin, policy director for the Defender Association of Philadelphia, told Fox43 News in Harrisburg, Pennsylvania. “And we think that is incredibly dangerous.”

Adding to the concern is one of the factors that would be part of a tool assessing future “dangerousness.”

Age.

Under the proposal being considered in Pennsylvania, anyone under age 21 gets five points. Those between 21 and 25 get four. The points lessen as the offender ages until, at age 49, the offender is not assessed any points based on age.

An 18-year-old gets five points right out of the gate. If an offender scores fewer than four points on the assessment, he or she would be considered a low recidivism risk. If the offender scores 10 or more points, the offender would be considered a high risk to reoffend. An 18-year-old would never be considered a low risk, and would be halfway to being a high risk without even considering any other factors.

Using age as a measure to assess the likelihood of future criminal behavior seems to fly in the face of other recent reforms in the criminal justice system.

According to The Marshall Project, a number of state courts and lower federal courts have begun to consider whether people between the ages of 18 and 21—the period psychologists now call “late adolescence”—should have the same kind of special consideration that juveniles get before they are sentenced.

In 2005, the U.S. Supreme Court ruled that no person under the age of 18 shall be sentenced to death. Since then the court has also ruled that a juvenile can’t be sentenced to life without parole for a non-homicide offense, or to mandatory life without parole.

See also subsequent Court rulings in 2009 and 2011.

The Supreme Court has never extended those protections beyond the age of 18.

The status of young adults is especially confusing in Pennsylvania. A court last year considered an appeal from a woman who was sentenced to mandatory life without parole after serving as a lookout, at age 18, during a botched robbery that ended in murder.

The Superior court rejected her appeal, but called 18 an “arbitrary legal age of maturity,” and said an “honest reading” of the Supreme Court’s ruling would require courts to reconsider it. The Superior Court En Banc reheard the matter in October.

The Philadelphia Inquirer reported that some of the full panel of judges expressed concern that “someone a day over 18 and someone a day under 18 are treated differently,” and suggested the matter deserved closer examination.

Last year, a Kentucky court found that it was unconstitutional to sentence to death those who were younger than 21 at the time of their offense.

Earlier this year, a federal court in Connecticut found that a man, who had been sentenced to life in prison without the possibility of parole for murders committed at age 18, should be resentenced. The court ruled that “the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds.”

In Pennsylvania, the significance of “late adolescence” appears to be very different if one is assisting a judge in sentencing as opposed to reviewing a sentence already imposed.

The Commission on Sentencing has scheduled a series of hearings to get public feedback from social scientists, criminologists, practitioners and activists.

Rethinking incorporating age into the assessment tool for “dangerousness” should be part of the debate.

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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GateHouse: What’s all the fuss about the 25th Amendment?

Matthew T. Mangino

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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