There has been a great deal of discussion lately regarding the 25th Amendment. In an era where a sitting president in public declared himself to be the “King of the Jews” and the “Second coming of G-d” I can’t say such talk is completely unwarranted or unexpected. Let’s do what we do here, break it down and see if we can make an educated guess as to the purpose of the 25th Amendment and its applicability to our present president and situation.
XXV is a somewhat unique amendment in that it, for the most part, is an amendment added to the Constitution for procedural purposes, clarifying and adding to the rather staid issue of presidential succession as contained in Article II, Section 1, Clause 6 of the Constitution reading in part;
“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President …”
Seems simple enough, but as we know from discussions here, the Constitution was purposely written in a “vague” manner that not only encourages interpretation but, as a practical matter, demands it. Our latest mission impossible, should we decided to accept it, is to find the Constitutional meaning for the word “Inability”. Let’s break it down.
The Amendment is fairly new. It was written in response to the Kennedy assassination and the status of then VP LBJ as successor to the presidency. The main inquiry was, did LBJ assume the duties and obligations of the presidency, or was he actually president? Vive le Roi! Long live the Roi! With that in mind, moving on.
The 25th Amendment is written in four sections. Section 1 involves presidential succession and the unresolved status of the vice president in cases involving Death, Resignation or Inability of the president. Short version, the VP doesn’t “assume” the powers and privileges of the presidency, s/he becomes the actual president. Section 2 involves appointing a new VP (the President does it). Section 3 addresses temporary disabilities (perhaps surgery) and written declarations allowing the VP to assume the duties and obligations of the presidency and Section 4 that offers guidance regarding a situation where the president, for physical or mental reasons, may, or may not be able to continue as an acting president. Section 4 is admittedly a bit more on the gray side than sections 1-3, but the real question and point of contention seems to be what constitutes an “Inability” when by all reasonable standards, the president is at least still alive and conscious or to put it another way, capable of refusing to leave office? Like here. Like now.
There is no real precedent as Section 4 has never been invoked. Thought about, most recently during Reagan’s second term in office, but never acted on. It would also be fair to say there is no past indication that XXV is an alternative to the impeachment process. But, and I believe this is key, for even more than the definition of inability, the decision to remove under the 25th A for physical and mental impairments was left to politicians. And that was even clarified by our 34th President;
…the “determination of Presidential disability is really a political question.” –Dwight D. Eisenhower
To invoke the 25th Amendment involves two branches of government, the executive and the legislative. Currently, “High Officials” in the form of cabinet members must first vote by majority to invoke. (Or, I might add, to some other body as Congress may delegate.) Then the invocation must be approved by 2/3rds of both chambers of Congress. The Supreme Court being left out on purpose due to the political question doctrine (the Supremes cannot involve themselves in a strictly political battle between the President and Congress).
The chief author and advocate of the 25th Amendment was Senator Birch Bayh, a famous trivia question answer in constitutional circles for being the only person other than the Original Framers responsible for authoring more than one Amendment. (He also wrote and passed the 26th lowering the voting age from 21 to 18 years of age.) As a passing foot-note he was also an advocate for the ERA Amendment and for an amendment changing the election for president to the popular vote.
In final analysis, I blame Birch for our current constitutional confusion. Why didn’t he leave the determination of physical and mental “Inability” to medical experts? Doctors, psychiatrists and physicians? Those involved in medicine and healing and who might be able to make an actual determination of fitness and hence the word Inability? Politicians judging the physical and mental impairment of another? (suppression of laughter) Good luck with that.