Letter to the Editor: The Twenty-Fifth Amendment Reader’s Guide

Harold Koh and the Yale Law School Rule of Law Clinic should be proud of their work. Released on April 18, the Clinic’s “Reader’s Guide” to Section 4 of the Twenty-Fifth Amendment offers those in the White House and Congress almost all of the technical answers they would need if a president ever becomes disabled.

The Guide has one key flaw, though. It is not incompleteness — while the Guide does miss or gloss over some issues, it covers the most important ones. It is not inaccuracy — it commits some errors, but nothing too major. The flaw, rather, is that the Guide does not inform those most in need of education about Section 4 right now: the throngs of people who think that President Trump is unhinged and that Section 4 should be used against him.

Koh and the Clinic did the right thing by making the Guide a general handbook, to be used in any administration, rather than a brief on what to do with Trump. But the reason Section 4 is in the air (and the reason, one presumes, that the Guide was written) is that a lot of people are currently questioning Trump’s capabilities. Whether or not these people are right about Trump, they are mostly wrong about Section 4. Even a general handbook like the Guide should make that clear.

The Current Situation

If Twitter is any indication, many of those calling for Section 4 to be invoked today have an inaccurate, muddled understanding of the way it works. They seem to see it as entailing two simple steps: one, someone invokes Section 4; two, the president is cast into the Pit of Despair forever. There is more to it than that, though.

The vice president and a majority of the cabinet invoke Section 4 by declaring that the President is “unable to discharge the powers and duties of his office.” This transfers provisional power to the vice president. But the president try to retake power by asserting that “no inability exists.” If the vice president and cabinet stick to their guns, Congress decides. The deck is stacked heavily in the president’s favor. Unless two-thirds majorities in the House and Senate vote within 21 days that the president is “unable,” the president retakes power. Even if he loses that vote, he can keep forcing new ones until his term ends.

Almost certainly, President Trump would immediately contest a Section 4 action. Would two-thirds majorities in the House and Senate back an effort to displace him? Presumably not. It takes fewer votes to impeach and remove a president (a simple majority in the House, along with two-thirds in the Senate). There are not enough votes for impeachment now, so surely there are not enough votes for a Section 4 action. Put another way, if today there is not a House majority willing to impeach President Trump or two-thirds in the Senate willing to remove him, there is no reason to think that even more people — the vice president, most of the cabinet, and 72 additional House Republicans — would support temporarily sidelining him. Who thinks President Trump is “unable to discharge the powers and duties of his office” but does not think he has committed any impeachable offenses? By my reckoning, somewhere around zero people.

As such, Section 4 simply is not useful for Trump’s opponents to contemplate right now. A Section 4 action would not remove Trump from office. He would be back in a few days, but angrier and with an eye toward firing the cabinet.

Back to the Guide

The Guide is useful because it is definitive. Section 4 has several ambiguities but in the heat of an actual incident of presidential disability, swift certainty would be more useful than an inconclusive exploration of every side of every argument. The Guide uses its credibility to burn off the haze and cut to its conclusions about procedures and standards. It does this by relying very heavily on Section 4’s extensive legislative history, which offers clear answers to almost every question the Guide addresses.

But Section 4’s legislative history also makes clear how Section 4 is ill-suited for situations like the current one. To avoid Section 4 being used as an end run around elections and the impeachment process, its creators intentionally made it hard to use effectively against a president who, however objectionable, is conscious and able to contest the action.

The bottom line is that while Section 4 can apply to all sorts of situations, it is only designed to work well when the president is unconscious or otherwise unable to communicate. The main exception is an emergency — e.g., a conscious but erratic president who is about to nuke another country — in which Section 4 can at least buy the country some time.

The Guide does not fully engage this part of Section 4’s legislative history and structure. It should have. Section 4 was designed with these limits in mind, and they are important to remember, especially right now.

  

About the Author(s)

Brian C. Kalt

Professor of Law & The Harold Norris Faculty Scholar, Michigan State University College of Law.