Editor’s note: This Guide was originally published on April 18, 2018. We are republishing it today.
The Twenty Fifth Amendment of the United States Constitution is an immensely consequential provision that has received remarkably little scholarly attention. Adopted in 1967, the 25th Amendment addresses what happens if the President of the United States is removed, dies, is incapacitated, or otherwise unable to fulfill the powers and duties of the presidency. To explain it, we offer The Twenty-Fifth Amendment to the United States Constitution: A Reader’s Guide, a document that provides guidance on critical interpretive and procedural questions regarding the 25th Amendment.
Section Four of the Amendment has drawn particular attention in the popular media and news commentary alike in recent months. This provision provides a strikingly compressed constitutional process whereby nine government officials could separate the President from his powers and duties, with the Vice President immediately becoming Acting President. If the President should contest this declaration of inability, the amendment requires both houses of Congress to assemble within 48 hours, and then (by a two-thirds vote of each body) to resolve the question of inability within three weeks. Depending on the vote, the President may resume his official duties, or the Vice President may continue to serve as Acting President.
In the more than 50 years since the Amendment’s ratification, Section 4 has never been invoked. There are no judicial or other authoritative opinions on its proper implementation. There is no historical practice to guide its operation. The Amendment’s requirements and implications have been misstated even by experienced legal commentators. As a result, uncertainty persists about such basic questions as
● When can or should Section 4 be invoked?
● Who can invoke it?
● What does presidential “inability” mean?
● What happens if the President contests the invocation of the Amendment?
● What are the Vice President’s powers and duties as Acting President?
● If the matter gets to Congress, how should the Amendment’s constitutional processes be implemented?
● Is the Amendment’s operation justiciable?
● And what would happen in the morning(s) after the Amendment is invoked?
Yet once triggered, the constitutional timetable is swift and inflexible. Critical national decisions would need to be made within weeks, employing a procedure that is poorly understood.
In an effort to remedy this uncertainty, the Rule of Law Clinic at Yale Law School is releasing an authoritative analysis of the Amendment and how it was intended to function. We have studied all available sources on the amendment and the intent underlying it. The Clinic examined the text, legislative history, critical academic commentary, and judicial analyses of the amendment, reviewed all significant past studies, and consulted closely with leading experts, including Professor John D. Feerick, past Dean of the Fordham University School of Law, a principal drafter of the 25th Amendment who continues to be its preeminent commentator.
The Clinic’s key findings included the following:
● While the amendment’s framers generally contemplated Section 4’s employment in the case of the President’s mental or physical incapacitation, they also expressly disclaimed any intent to define “inability.” They purposefully set forth a flexible standard intentionally designed to apply to a wide variety of unforeseen emergencies. As a result, those deciding whether a President is “unable to discharge the powers and duties of his office” should focus on the overall effects of the inability—whether the totality of the circumstances suggests that inability prevents him from discharging the powers and duties of the presidency—rather than the specific characteristics of the inability itself.
● The Clinic found a general consensus that while medical evidence may inform the inability determination, Congress and the amendment’s other actors must render its own judgment as to presidential inability.
● The Clinic concluded that while the amendment is increasingly discussed in popular media, the United States government is unprepared for the unlikely event that Section 4 is triggered; most critically, there are no standing congressional procedures to be followed.
● The Clinic also released an addendum to the Reader’s Guide that recommends a list of congressional actions that could be immediately taken to clarify Section 4’s constitutional process, and minimize Executive Branch and Congressional chaos surrounding the transition of power to the Vice President and the adjudication of the President’s inability. These proposals include clarifying committees of jurisdiction, adopting formal standing rules and procedures for deliberation, creating a standing advisory committee, passing laws establishing procedures for the transition of power, and passing a joint resolution affirming the interpretive conclusions in the Reader’s Guide.
Experts who have read the Guide believe that it provides invaluable and authoritative guidance on critical interpretive and procedural questions regarding the 25th Amendment. Were the issue of presidential inability ever to be contested, faithful adherence to the rule of law would require careful parsing of and conscientious adherence to the text, structure, history and practice of the Amendment. The Guide seeks to do this in a way that is accessible and understandable. Even—perhaps especially—in a time of constitutional emergency, we hope that the Reader’s Guide will serve as a helpful constitutional resource to ensure that a critical provision of our Constitution is properly implemented in accordance with the Rule of Law.
For further reading, see this explainer from Yale Law School’s Harold Hongju Koh. As he states in it, “This is a constitutional procedure that very few Americans understand and a text that even many trained lawyers regularly misconstrue.”