I was asked last Friday (October 9th) to comment on the 25th Amendment and analyze legislation the Speaker of the House recently announced. After a little bit of research, I found that while the media on all sides were apoplectic, the legislation itself was mostly fine. That makes this just another example of the importance of checking for yourself before coming to a conclusion. So we’ll look at the 25th Amendment and the proposed legislation for ourselves.
Background
When I was first asked to look into Ms. Pelosi’s announcement and the related legislation, I searched for news items about it. Many were misrepresenting the 25th Amendment with statements about it being used to remove a sitting President, while others bordered on political hyperbole. As usual, I merely found the actual proposed legislation and started there. If we want to understand this piece of legislation, we need to understand the 25th Amendment.
25th Amendment
The 25th Amendment was passed by Congress in 1965 and ratified by the states in 1967. It consists of four (4) sections, each of which deals with a specific situation regarding presidential succession. Those of you who remember that time in history, will notice this was shortly after the assassination of President Kennedy. At the time, there was some confusion about the constitutionality of the Vice-President becoming President.
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.
U.S. Constitution, Article II, Section 1, Clause 6
While Article II, Section 1, Clause 6 does provide for the Vice-President to discharge the powers of the President, that is not the same as him actually becoming President. So the first section of the Amendment is actually quite simple:
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
U.S. Constitution, Amendment XXV, Section 1
Now, instead of just discharging the powers and duties of the President, the Vice President would actually become President. Of course, that opens up another issue: If the Vice President becomes President, how do we fill the office of Vice President? This became more of an issue in 1973 with the resignation of Vice President Spiro Agnew. Both of these situations though, had been dealt with in section 2 of the amendment.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
U.S. Constitution, Amendment XXV, Section 2
Remember, both the President and Vice President are elected by the states, not directly by the people. I believe, because the Vice President also becomes President of the Senate, it was decided that this appointment should be confirmed by both houses of Congress.
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
U.S. Constitution, Article I, Section 3, Clause 4
So the amendment has dealt with the removal of a President and selecting a replacement Vice President. What about a situation where the President is unable to discharge his duties for a period of time? Remember, when the Constitution was written, not only had Congress not delegated so much of their power to the executive branch, but the powers of the President did not require that he be available 24 hours a day, seven days a week. Even if a state was invaded, it would take hours if not days for the news to get to the President and even more time for him to come to a decision and his orders to be carried out. Today, however, we live in a nuclear world, where the time to react to a life-threatening event may be only minutes. What is the government to do?
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.
U.S. Constitution, Amendment XXV, Section 3
If the President becomes unable to fulfill the duties of his office, he can simply send a written declaration to the leaders of Congress stating so. His powers will devolve to the Vice President as Acting President until the President informs the leaders of Congress that he can once again take up his duties. Notice, the Vice President does not become President during this time, but Acting President.
Section 4
What if the President is unable, or unwilling, to declare that he is unable to discharge his duties? Most of the recent discussions about the 25th Amendment revolve around this question. While the process seems a little convoluted, it’s really quite simple.
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.
U.S. Constitution, Amendment XXV, Section 4, Clause 1
If the Vice President and a majority of the President’s cabinet (what we call the principal offices of the executive departments today), believe the President is unable to discharge his duties, they send a written declaration to the leaders of Congress. Then the Vice President assumes the power and duties as Acting President. Unlike what is being said by much of the media today, the President isn’t removed from office; only his powers are temporarily transferred to the Vice President.
Since this is supposed to be a temporary transfer of powers, how does the President get them back?
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…
U.S. Constitution, Amendment XXV, Section 4, Clause 2
So all the President has to do to get his powers back is write a letter to the leaders of Congress stating that no inability to discharge his duties exists. At that point, the real question becomes: What if the Vice President and the cabinet disagree with the President?
…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.
U.S. Constitution, Amendment XXV, Section 4, Clause 2, cont’d
Now we have a stalemate. Both sides of the question, i.e., the President and the Vice President (along with a majority of the cabinet), disagree as to whether or not the President can discharge his duties. What are we to do?
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.
U.S. Constitution, Amendment XXV, Section 4, Clause 2, cont’d
If the President and the Vice President do not agree about the President’s ability to discharge his duties, then the question goes to Congress. The amendment then gives Congress three weeks to come to a decision. In order for the Vice President to remain as Acting President, two-thirds of both houses of Congress must agree that the President is unable to discharge his duties.
H.R.1987 – Oversight Commission on Presidential Capacity Act
If you read the quotes from the 25th Amendment closely, you will notice that there can be another body, besides the cabinet, that can support the Vice President’s contention that the President is unable to discharge his duties. That other body is created by law. Since that body has not yet been created, I did not include one in my description of the amendment. However, it appears that Speaker Pelosi and Representative Jamie Raskin have plans to resolve that oversight.
There is established a commission in the legislative branch to be known as the “Oversight Commission on Presidential Capacity” (in this Act referred to as the “Commission”). The Commission shall serve as the body provided by law by Congress to carry out section 4 of the 25th Amendment to the Constitution of the United States.
H.R. 1987 – Oversight Commission on Presidential Capacity Act
Should this bill become law, a commission would be created to fulfill the power of Congress to create a body other than the cabinet that can, with the Vice President, find that the President is unable to discharge his duties. Unlike how many of the news articles I saw described this legislation, most of it is quite innocuous, merely fulfilling the power delegated to Congress to come up with this new body. There is, however, one very serious problem with the language as it currently appears:
In General.—If directed by Congress pursuant to section 5, the Commission shall carry out a medical examination of the President to determine whether the President is mentally or physically unable to discharge the powers and duties of the office, as described under subsection (b).
H.R. 1987 – Oversight Commission on Presidential Capacity Act Section 3(a)
Nothing in the Constitution gives Congress the authority to demand that anyone (not even the President of the United States) submit to a medical examination. This would be a violation of the President’s rights as protected by both the Fourth and Fifth Amendments.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Constitution, Amendment IV
We all have a right to be secure in our persons. That means that no government official can touch you or order someone else to touch you. If Congress wants someone to have a medical examination against their will, legally it would take more than just the direction of Congress, it would require a warrant. That warrant would have to be based on probable cause, supported by oath or affirmation, and specifically identify the person to be seized. As I mentioned, this part of the legislation would also violate the President’s rights protected under the Fifth Amendment.
No person shall… be compelled in any criminal case to be a witness against himself, be deprived of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment V
While I doubt a medical examination would deprive someone of their life, to force someone to submit to one most definitely deprives them of their liberty and the property they have in their own body. Some may claim that this forced examination is also a violation of the right against self-witness. While it does violate the general right of not being forced to witness against oneself, the Fifth Amendment only protects people from doing so in criminal cases. This legislation attempts to deal with the situation where a President refuses to submit to an examination ordered by Congress.
Consideration.—Any refusal by the President to undergo such examination shall be taken into consideration by the Commission in reaching a conclusion in the report under subsection (a).
H.R. 1987 – Oversight Commission on Presidential Capacity Act Section 6(b)
Exercising a right, whether listed in the Constitution or not, is not evidence to be considered. The idea that refusal to submit to an illegal seizure could be used against you is a violation of the right to be safe from self-witness.
The question was raised during the press briefing about the ethics of coming to a medical conclusion without an examination. First of all, the body called for in the 25th Amendment is not being asked to make a medical decision. While the commission this legislation would create does include medical professions, that would be a decision of Congress, not a requirement of the law. Should this legislation become law, the fact that Congress wants a medical opinion about the President does not deprive him of his rights. It’s the duty of Congress to follow due process when providing for a body allowed by the 25th Amendment.
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
The Free Legal Dictionary
Conclusion
As usual, the hype about this legislation far outstrips its actual language. If Congress can deal with the constitutional violations in section 5 without further violations of the rights of individuals, there is nothing else wrong with it that I have seen so far. The political issues behind the timing and language of this legislation are fodder for a different day. What I hope you have seen in this article is the importance of finding out for yourself what the Constitution and legislation actually says before coming to a decision. While President Reagan may have used the phrase “Trust, but verify!”, I have very little reason to trust either the media or pundits in this day and age. So I will verify everything they say.
