President Trump has tested positive for the coronavirus. Although the White House Doctor says he is “fine at this point,” the constitution contains provisions to ensure continuity should his condition change. Here is an explanation of the 25th Amendment:
When Dwight Eisenhower stepped down at the age of 70 in 1961, he was the oldest president in US history. And he had struggled with health problems. In his first term, Eisenhower suffered both a heart attack and a minor stroke, which left a nation that was nervous even before the tensions of the Cold War even more.
He and his Vice President Richard Nixon reached an agreement under which Eisenhower would temporarily relinquish power should he be unable to act again, but would determine for himself when he should resume his duties.
It was an ad hoc deal that ignored a scenario where the president is unable to determine his suitability for office.
When the senior incumbent president was replaced by John Kennedy, the youngest elected president, concerns about the issue “seem to have been eased,” according to Thomas Neale of the Congressional Research Service.
That is, until Kennedy’s assassination made the possibility of the president’s extended incapacity again very real.
Article II, Section 1, Clause 6 of the Constitution states that the Vice President shall assume the President’s “powers and duties” in the event of the President’s “incapacity”, but does not say how to determine that the President is incapable to serve.
Hence the 25th amendment to the constitution, passed by Congress in 1965 and ratified in 1967 when Nevada was the 38th state to approve it. Sections 3 and 4 of the amendment fill this constitutional loophole: How can we ensure that the nation has a director general when the president is incapacitated?
Section 3 deals with the simplest scenario: when a president finds that he is incapacitated and later finds that he can return to the duties of the office. The President will notify the Speaker of the House and the Provisional President of the Senate in writing of his incapacity and will inform them again in writing when he is ready to resume. The vice president during the interregnum acts as the incumbent president.
According to Neale of the CRS, Section 3 was accessed three times:
- President Ronald Reagan did so when he underwent cancer surgery in 1985 and temporarily held Vice President George HW Bush accountable (although Reagan claimed the authors of the amendment did not intend to use it in such circumstances).
- President George W. Bush officially invoked the amendment twice in 2002 and 2007 while undergoing routine colonoscopies.
Section 4 deals with a much more complex scenario: when a president is unable to explain his inability.
In such a case, the Vice-President and a majority of Cabinet Secretaries temporarily inform the Spokesman and President that the President is unable to perform his duties and the Vice-President immediately takes over the office of incumbent President. The President resumes his duties with “his written declaration that there is no incapacity”.
And what if a president denies the finding that he cannot perform his duties?
Again Section 4: The Vice President and a majority of Cabinet Secretaries must again declare the President incapable and do so in writing within four days. The congress then has to meet within 48 hours and has 21 days to decide on the topic. A two-thirds vote from both houses is required to declare the President incapable of performing his duties. Shortly before this two-thirds vote, the President remains authorized.
In Section 4, there is another way to declare a president incapacitated. The vice president may do this through “any other body that Congress may provide by law,” essentially an independent audit committee. Doctors? Psychotherapists? Legal scholar? Religious leaders?
The 25th amendment says nothing and Congress has never responded to that question.