Time to Review the 25th Amendment

Comment: Article II, Section 1, of the Constitution states: “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.”

What is “inability,” and who determines what it is?  What is “disability,” and who determines what it is?  When the vice president succeeds the president, does the vice president become the president, or is he only the vice president acting as president (on a temporary basis)?

In 1841, President William Henry Harrison died in office and was succeeded by Vice President John Tyler.  Tyler asserted that he had become the president and was not the vice president acting as the president.  This established a precedent that was followed when subsequent vice presidents succeeded presidents who died in office (Taylor, Lincoln, Garfield, McKinley, Harding, Roosevelt, and Kennedy).

The problem that the Tyler precedent caused is that it was generally believed that the vice president could not step in on a temporary basis to act as president because once he stepped in, he had become the president.  This would not be acceptable if the president was only suffering a temporary inability or disability.

This amendment section clearly indicates that the vice president becomes President.

Section 2.

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.

Comment: The Constitution provides no mechanism for replacing a V.P. vacancy.  This amendment section solves the problem.  The section was first used when Vice President Spiro Agnew resigned (while under indictment).  President Nixon nominated Congressman Gerald Ford as replacement V.P., and Congress approved the nomination.  It was used a second time when President Ford nominated Nelson Rockefeller to be his V.P.

Section 3.

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.

Comment: This amendment section handles the issue of a temporary transfer of power to the vice president, which had previously been a legal gray area because of the Tyler precedent.  It was used in 1985 when President Reagan was in surgery following the assassination attempt and by President George W. Bush in 2002 when he was in surgery.

Section 4.

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.

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 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. 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.

Comment: This section, which has never been used, deals with the case where the president is unable to discharge his constitutional duties and is either unable or unwilling to surrender his power to the V.P.

Everyone hopes President Biden will step down gracefully and simply resign the presidency.  But what if he doesn’t?  A hypothetical may help explain what could happen.

Communist China has sought the return of Taiwan to the mainland’s control since 1948.  In the last 15 years, mainland China has had a vast naval build-up that presents a major threat to the U.S Pacific Fleet.  China has observed that President Biden has signs of dementia.  It is also aware of the provisions of Section 4 of the 25th Amendment, and the cumbersome process of transferring power from the president to the vice president in the event of disability.  The leaders of China conclude that a swift attack on Taiwan would cause chaos in the Biden White House command structure that would not be resolved for several days.  By the time the U.S. responded militarily, China would have an insurmountable advantage in the invasion that could not be undone with conventional weapons.  China also concludes that the U.S. will not use nuclear weapons to defend Taiwan.

On July 23, 2021, the 100-year anniversary of the founding of the Chinese Communist Party, China launches a massive invasion of Taiwan.  As news is related to President Biden, he is overwhelmed and shuts down mentally.  An order is signed by President Biden authorizing the U.S. Pacific Fleet to respond to the threat.  However, the military chain of command wants to meet with the president to verify that he has signed the order and that he Is mentally competent.  Members of the Joint Chiefs meet with the president and determine that he is not mentally competent and refuse to obey the order.

On July 24, Kamala Harris calls an emergency Cabinet meeting to invoke the provisions of Section 4 of the 25th Amendment and to remove the president from office.  A majority of the Cabinet declares that it will not decide until it sees medical proof of disability.  President Biden refuses to consent to a medical exam.

July 26, at another emergency Cabinet meeting, affidavits and witnesses are presented demonstrating President Biden’s inability to govern.  The majority of Cabinet members vote in favor of removing President Biden, and a written declaration is submitted to both houses of Congress.  Upon delivery, Kamala Harris becomes acting president.  Two hours later, President Biden delivers a written declaration to both houses of Congress that he has no inability to govern and resumes being president.

July 27, V.P. Harris and a majority of the Cabinet submit a second written declaration to both houses of Congress that again states that President Biden is unable to discharge the powers and duties of his office.  Upon delivery, V.P. Harris again becomes acting president.  Congress must schedule the trial within 21 days of July 27.  A trial is scheduled for August 16.

July 28, Acting President Harris gives an order to the Pacific Fleet to provide logistical support to the Taiwanese military.  The military responds that it will take at least five days for a carrier group to arrive in the area, which will be too late to offer assistance to the Taiwanese.

August 3, Taiwan announces its unconditional surrender to China, and major hostilities cease.

August 16, over two-thirds of both the Senate and the House vote that President Biden is unable to discharge the powers and duties of his office, and V.P. Harris shall continue as acting president.