Whatever the results of next month’s presidential election, odds are we will all soon be needing a crash course of Section Four of the Twenty-Fifth Amendment to the U.S. Constitution. Thankfully, Professor Brian Kalt at the Michigan State University College of Law has written a brief, accessible and even entertaining book on the topic Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment (Oxford, 2019). If you care about the what to do when a president has become unable to perform his or her job, read this book.
The Twenty-Fifth Amendment was passed by Congress in 1965 and ratified by the states in 1967. Passed in the aftermath of the assassination of President John F. Kennedy, the amendment is designed to address a difficult question: Who governs when a president is alive but unable to serve?
Inability comes in many forms. A president may become temporary disabled, by virtue of planned anesthesia incident to surgery. In that case, the president signs a simple declaration and delivers it to the Speaker of the House and the President pro tempore of the Senate declaring such. At that moment, the Vice President becomes acting president, and remains acting president until such time as the House and Senate leaders received a letter declaring the actual president is once again fit to serve.
That’s simple enough. Indeed, this procedure has been used by Presidents Reagan and George W. Bush when they underwent colonoscopies. These are voluntary temporary transfers of power, governed by Section 3 of the Amendment.
But what to do if a president becomes unable to perform by reason of mental illness, senility or some other involuntary and exigent circumstance? That’s when Section Four would be used. It has never been used.
Section four gives the power to declare a president unable to others. It reads, in part: “Whenever the Vice President and a majority of either the principal officers of the executive department or such body as Congress by law provide,…” Upon service of such a declaration of inability to the House and Senate, the president is immediately relieved of authority and the Vice President becomes Acting President. The deposed president can protest, and, thereafter, a four day-waiting period ensues. If same body that certified the President to be infirm presses the point, it must notify the House and Senate. Thereafter, both Houses of Congress have 21 days to decide the issue, with a two-thirds vote in each house needed to keep the President out of office.
It is much more difficult to achieve than impeachment, which requires a mere majority in the House, and no cooperation from the Vice President.
Is it necessary that the Vice President sign on? The answer appears to be yes. He must be joined by either a majority of the principal offices of the executive department, taken to be the Cabinet, or by a majority of “such body as Congress by law provide[s].” What would that Congressional body look like? The Constitution doesn’t say.
I got interested in this issue when I saw that House Speaker Nancy Pelosi was calling for creation of a commission of some sort on presidential disability. She did this only weeks before the election. Did she know something about polling for the elections that the press doesn’t? It appears that Biden is a shoo-in in November. Or was she preparing for a Biden administration? If elected, Biden will be the oldest man ever to assume the office. He appears to struggle with stamina, sentence structure and concentration. Acting President Harris, anyone?
(P.S. Because Harris would be Acting President only she would not have the right to nominate a Vice President for congressional approval.)
Because section four has never been used, there is little telling how it would be received and put into practice. Professor Kait wrote in part to put the issue front and center in the national debate about presidential power. He rightly fears the profoundly delegitimizing impact of removal of an elected president, no matter how briefly.
So what makes this book so entertaining?
Presidential succession issues are a staple of film, television and fiction. Look no further than such shows as 24, Madame Secretary, House of Cards, Homeland or various novels by William Safire, Mario Puzo and Frederick Forsyth. Kalt provides an overview of each of their treatment of succession issues and contrasts that with what he understands the law to require. Almost all of the fictional accounts get things wrong, but, ominously, most of us get almost all of our information about the law from popular culture. There is a serious discontent. (Only Safire comes close to getting it right in his 1978 Full Disclosure.)
The best part of the book is Kalt’s presentation of various hypothetical events as a means of showing how the law works. Can the law be mis-used by an ambitious vice president? Yes, but he or she would need the cooperation of a majority of the Cabinet. What if the president becomes disabled by sorrow, or diseases, or undetected mental illness? What if a president simply goes off his rocker and declares nuclear war on an adversary, a war that could result in vast destruction? What does disability mean in these contexts?
The fact of the matter is that our institutions are always held together by the slenderest of reeds: good will. That seems to be in short supply these days. Kalt raises the distinct possibility that, for a time, the nation might actually have two persons with claims to hold the power of commander in chief. Scary stuff.
I chuckled in reading one of the hypotheticals when I read that the vice president, Harris, had, with the Cabinet, temporarily deposed a president, and then refused to relinquish power, restarting the cycle of removing a president from power in an apparent bid to hold power.
Acting President Harris? A President playing with something less than a full deck? Oh, be careful what you wish for, I thought. However disconcerting a prospect the Trump presidency has been for plenty of folks, the thought of Kamala Harris, a woman more than one person has told me in recent days reminds them of Joaquin Phoenix in Joker, a declaration away from the Oval Office chills me.
This is a brief book. You don’t need to be a lawyer to enjoy it.
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