Today in Supreme Court History: February 10, 1967

2/10/1967: The 25th Amendment is ratified.

Comments

[Enrique]

The most convoluted and complex amendment of all and which should be repealed ASAP

[Krayt]

What is convoluted? It allows unwanted removal but has massive checks and time delays in it. You need majority of his officers (not just the usual suspects, the opposition, ready to jump on it) and Congress, and if the President still objects 21 days later, a 2/3 supermajority. In short, you need to prove to his supporters he's so bad he needs to go.

Sounds like a solid plan. Similarly, you'll note the last 3 impeachments couldn't clear that bar.

[JoeFromtheBronx]

Section 4 is somewhat convoluted.

Senator Bayh, who wrote a book about his role, supported carefully constitutionalizing the details. Which involves two long paragraphs.

"In short, you need to prove to his supporters he's so bad he needs to go." The way this is done is fixed in stone, including repeated specification of time periods. The Constitution is often not concerned with such minutiae, and a case can be made that flexibility via congressional legislation would have been better.

Some at the time thought so. Both sides had some reasonable arguments.

[Krayt]

One interesting thing, the VP becomes president immediately, without taking the oath of office, though they probably would anyway.

[David Nieporent]

The VP becomes acting president.

[The Margrave of Azilia]

Right now the Cabinet needs to approve Presidential removal under the 25th Amendment.

But the amendment lets Congress transfer that responsibility to some "other body".

Why not a panel of physicians, psychatrists, and other experts?

Such an expert body would be polically accountable, because the Vice-President, and Congress, would still have to agree with the panel before a President is removed. And each house of Congress would need a 2/3 vote for removal.

So the effect of designating a panel of experts would *not* be to give them the final decision, but to give them a veto over polically-motivated attempts at removal, as well as giving (hopefully) scientifically-informed information about the President's condition.

[John F. Carr]

Do you have a way to choose a body whose decisions will be trusted by the public?

I wouldn't trust a panel of doctors to judge Trump. There's a reason for the Goldwater Rule. Doctors have political opinions too, and these days the opinions tend to be on the left. You're replacing a body of officers who support the president with a body that, depending on the last election, loves the president or hates him.

Of course the little boy who cried "wolf!" was right once. How do we know when that time comes? Maybe the committee only gets one request per term. The next Hitler takes office January 20. The panel instinctively recommends his removal on January 21. WTF? No. Now the committee is done for the next four years as he takes his revenge. Hold your fire until he's really nuts, not just posting on social media like an angry 13 year old.

[The Margrave of Azilia]

Again, the 25th Amendment allows removal with the concurence of

-The cabinet OR such other body as Congress designated

PLUS

-The Vice President

PLUS

2/3 of each house of Congress.

Perhaps the expert panel could initiate an embarrassing discussion on Presidential disqualification, but their recommendations are subject to a political veto. And the expert panel would also have the power to veto a politically-motivated removal by the Vice-President and Congress.

It's very possible - perhaps even desirable - that if the expert panel is unsuccessful in its attempt, the members will be replaced. I'm not saying that *will* happen, just that it's possible. They'd go back to their other jobs.

But if retaliation against an expert panel is possible, how much more is there the risk of retaliation against the Cabinet, which currently is a body whose concurrence is necessary.

My guess is that, due to the controversial nature of removing a President, such a power would only be exercised in a clear case, Such as

-a Wilson-like stroke or other medical disability - one of the reasons Wilson wasn't removed was because of doubts about the proper procedure, doubts which the 25th Amendment resolves

-Capture of the President by some hostile power

These would be scenarios where there would be a broad consensus that the President can't discharge his official duties.

Short of that, what's the incentive to provoke massive political turbulence by raising the issue without assurance that the President will be removed?

[F.D. Wolf]

The great work of Secretary Charles Evan Hughes in avoiding a war with Japan in 1921 is in the opinion of this Editor that man's enduring claim to statesmanship; but it was only one, if the most momentous, of his many accomplishments during the Administrations of President Harding and Acting-President Coolidge.

Samuel Flagg Bemis, Editor's Preface to Volume X, 10 The American Secretaries of State and Their Diplomacy, at xii, xiii-ix (Samuel Flagg Bemis ed. 1929).

Section 1 of the 25th Amendment codifies the "Tyler precedent", that, upon the death, resignation, or removal of the President, the Vice President becomes President, and not merely Acting President.

When William Henry Harrison became the first president to die in office in April 1841 after only a month in office, it was uncertain whether Vice President John Tyler was now the President, or merely the Acting President. Tyler was adamant that he was THE President, even refusing to acknowledge correspondence addressed to "Acting President Tyler". One might ask if it really made any practical difference, but Tyler's chief motive may have been very simple: money. The yearly salary of the President was $25,000; the salary of the VP was $5,000.

I believe the drafters of the Constitution intended for the Vice President to be Acting President. That is the most natural reading of the original constitutional text: "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."

Debate centered around whether "the Same" related back to "the Powers and Duties" or to "the said Office". But what is the status of a President with a temporary "Inability" under this text? Is he no longer the President? Are there two Presidents? I believe the natural, non-absurd answer is that the temporarily disabled President remains President, but the VP temporarily assumes the powers of the office as Acting President.

I believe this reading is further bolstered by the constitutional provision that, "The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." When would the Vice President "exercise the Office of President of the United States", and therefore not be able to serve in his normal role as president of the Senate? When he was temporarily the Acting President. This provision would be largely nonsensical if the Vice President became President, logically implying that he was no longer Vice President.

[JoeFromtheBronx]

We have never had a situation where Section 4 of the amendment kicked in. The role of the Vice President alone discourages declaring the president "unable to discharge" their duties, especially if the president challenges such a finding.

When President Wilson was ill, and bluntly speaking, unable to discharge his duties, his vice president refused to step in on his own authority. Congress also refused to step in, though Art. II provides it power to address the situation.

The 25th Amendment formally gave the vice president, along with the Cabinet (or a body Congress establishes), authority. But they still have to have the will to use it. A V.P. and Cabinet closely aligned with the president often will be disinclined to do so.

What does "unable to discharge" mean? One scenario would be if the president were kidnapped and unable to do so. Some argued Trump was unable to discharge in January 2021. Pence disagreed.