Presidential Disability: A Quick Summary

|The Volokh Conspiracy |

Whenever the President is ill, people understandably wonder how our system decides when the Vice-President needs to take over. Article II of the Constitution contemplated this, but without giving much by way of details:

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, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

But the Twenty-Fifth Amendment (proposed in 1965 and adopted in 1967) provides a more specific rule, not by defining "inability" (or "disability"), but by indicating which institutions make that decision.

[1.] First (section 3), the President can officially announce his inability (for instance, when he recognizes that he is very sick, or is about to go into surgery), and then later announce that he's back:

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

[2.] Second (section 4), the Vice-President plus a majority of the Cabinet can officially announce such inability on the President's part. (The Cabinet includes the Secretaries of State, Treasury, Defense, Justice [i.e., the Attorney General], Interior, Agriculture, Commerce, Labor, Health & Human Services, Housing & Urban Development, Transportation, Energy, Education, Veterans Affairs, and Homeland Security.)

Naturally, on television this arises in highly controversial, dramatic circumstances, but it can equally apply when, for instance, the President falls into a coma without having an opportunity to issue a written declaration:

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 [to my knowledge, Congress has not provided any such other body -EV], 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.

And then when the President says he's ready to come back, his decision generally prevails …

[3.] unless the Vice President and a majority of the Cabinet say nay:

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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.

And then if there is disagreement between the President on one side and the Vice President plus a majority of the Cabinet on the other, Congress decides:

Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

In effect, that means that, if the President says he is able to discharge his duties, he wins if

  1. the Vice-President agrees with the President,
  2. half or more of the Cabinet agrees with the President,
  3. more than one third of the House agrees with the President, or
  4. more than one third of the Senate agrees with the President.

And that is of course deliberate: The President is the one who has been elected, and it should take (in the event of a dispute) the agreement of many institutions to dislodge him on grounds of supposed inability to discharge the powers and duties of the Presidency. Of course, usually there won't be a dispute, and the much less dramatic items 1 and 2 above control.

What about the courts? I very much doubt that courts will get involved; this is very sort of "nonjusticiable" "political question" on which there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department" (or, here, two coordinate political departments) and "a lack of judicially discoverable and manageable standards for resolving it."

For more, see Ilya's post below, which also deals with what happens to the election if President Trump—or for that matter Vice-President Biden—dies or becomes too incapacitated to be elected.

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  1. HOW DARE YOU NOT BOW AND WEEP BEFORE THE RADIANT MAJESTY OF RGB. HAVE YOU NO SHAME? HAVE YOU NO DECENCY FOR GOODNESS SAKES PUT ASIDE POLITICS FOR ONCE IN THE NAME OF HUMANI-…oh the President is dying. Hope he bites it. nyuck nyuck nyuck move it chowderhead…

    1. CNN covers the president, Fox covers ‘the narrative’

      1. Random headlines in the first page of CNN videos

        Are elderly people now disposable?: Look in the mirror Trump
        A firehose of lying. Trump townhall fact check
        Voter to President Trump: Let me finish sir.
        Let’s be real. Lemon reacts to Trump causing a panic over ANTIFA

        real objective professional coverage there…

        1. Don’t look random to me.

          1. Go on CNNs video list and look for yourself. Its filled with them. Go on Foxnews video list and see how many videos you can find on the first page with the opposite of gushing praise in the headline.

            1. What I see on CNN’s videos page:

              Don’t miss the Ivanka Trump bombshell buried in the Times tax

              ‘Weird Al’ Yankovic mocks presidential debate in ‘We’re All Doomed’

              Louisville police major relieved of command after reportedly insulting protesters in email to other officers

              Watch Gremlin reveal his identity on ‘The Masked Singer

              ‘I am woman’ singer Helen Reddy has died

              Your first look at Jim Carrey as Joe Biden on ‘SNL’ has arrived

              A man covered his face with tattoos and turned his eyes black. He says it cost him his kindergarten teaching job

              Fmr Dep. Surgeon General: ‘If Trump were my patient, I’d be worried’

              1. I’m talking about the cnn youtube page. Sure theres other stuff but theres a ton of videos like I just listed while Fox generally has more neutral factual titles. They’re not really the polar opposite of being a fountain of gushing praise for Trump that they’re accused of.

  2. I love the part about the legislature setting up a different group to determine ability. Biden can only get in if the dems pull off something that also gives them the house and senate. A simple majority vote and the DNC can become the definer of the president’s competence.

    1. Longtobefree: Did you catch the part about how the President can be declared disabled only by concurrence of the Vice-President and the body provided by Congress (if Congress chooses to depart from the default, which is the Cabinet)? The Vice President is elected on the same ticket as the President, and is thus generally of the same party as the President. Even if the body is skewed towards the opposite party (e.g., Congress defines the body to be the Senate and House leadership, in a way that favors the party in control of Congress, and that party happens not to be this particular President’s), that body can’t do anything unless the Vice-President is on board.

      I do think there’s an interesting question whether Congress’s power to define the “such other body as Congress may by law provide” is unlimited, or whether it’s implicitly constrained by other constitutional provisions (e.g., the First Amendment, the Equal Protection Clause, and the like). But in any event, the need for the Vice-President’s concurrence in any temporary removal of the President will be a powerful constraint on Congress here.

      1. Unless the VP also becomes incapacitated. With all the Rep operatives coming down at once it wouldn’t surprise if someone with a grudge spat into the punch bowl in the WH Bunker.

        1. The VP becoming incapacitated (or dead) seems to me to make it impossible to remove the President without his consent, since 25A Section 4 requires the VP and a majority of the Cabinet to remove him. No VP, or not active VP, and 25A Section 4 can’t operate.

          Strictly I think this is a fifth category to add to EV’s list :

          e the Vice-President is incapacitated, or there is no VP

  3. When Trump beats COVID, how long before we start hearing from the Woke Leftwaffe about the white supremacy of white blood cells?

    1. You make a joke, but Vitamin D is a distraction to politicians buried deep in systemic racism narratives.

  4. The concern was Soviet Nukes, not ChiCom Viri, but we have a highly-classified “continuity of government” plan that Congress approved in the 1980’s.

  5. A hypothetical. Trump wins but dies, Pence becomes President. D’s keep House. Senate ties at 50-50. Game that out.

    Pence nominates a new VP per 25th Amendment. House rejects, and Senate ties. There’s no VP to break the tie (also, there’s no Senate Majority Leader to manipulate the process).

    D’s select Hakeem Jeffries as Speaker, who becomes first in line of Presidential succession.

    With no president pro tempore of the Senate (no Majority, remember?), Secretary of State Pompeo is second in line of succession (without specific Presidential action, Cabinet officers keep jobs if President doesn’t change, right?). Jeffries immediately hires additional bodyguards and food tasters.

    President Pence contracts Covid-19…

    (Sorry, gotta run and submit a treatment for the screenplay I’m gonna pitch to Netflix…)

  6. In effect, that means that, if the President says he is able to discharge his duties, he wins if … half or more of the Cabinet agrees with the President

    I disagree. The President wins if one cabinet member agrees with the President.

    Cabinet members serve at the discretion of the President. If 14 of 15 cabinet members think he should be removed, he can dismiss 13 of them and keep two, thereby denying a majority to remove him.

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