The 25th Amendment's Gatekeeper
The Vice President Runs the Show (Mostly)
1
The 25th Amendment applies when the President “is unable to discharge the powers and duties of his office.” That is a pretty high bar (“inability”), but let’s focus here on the mechanics and on this question: Who decides?
Hete’s the basic answer: The Vice President. At least this is so insofar as he acts as gatekeeper.
If the Vice President doesn’t want the 25th Amendment process to go anywhere, it won’t go anywhere. The only exception is if the President himself wants to invoke the 25th Amendment.
2
So: The 25th amendment does not get invoked because Congress wants to invoke it, or because the American people want to invoke it, or because the Supreme Court has the votes to invoke it - or even because all of the Cabinet heads want to invoke it.
It can be invoked only by:
The President himself
The Vice President and a majority of the principal officers of the executive departments
The Vice President and a majority of such other body as Congress may by law provide
That’s it. As you can see, the President and the Vice President have effective veto power. That’s crucial. You can’t invoke the 25th Amendment, ever, unless one of them authorizes the 25th Amendment to be invoked.
More precisely: (1) The President can give a green light to the process. (2) Subject to (1), the Vice President can give a red light, but he needs others to give a green light.
Note: We are going to be behind a veil of ignorance throughout. We are not going to think about any particular President, or about whether his last name begins with R, B, C, B, O, T, B, or T. Note also: The 25th Amendment is about inability, not about misconduct. The Impeachment Clause is about (egregious) misconduct, not inability.
3
Here is 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.
That is pretty clear. Under Section 3, all of the authority lies with the president. He can say: I cannot do the job. If he does not say that, he gets to do the job, as far as Section 3 is concerned.
4
Here is part of Section 4:
Whenever the Vice President and a majority of . . . the principal officers of the executive departments . . . 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.
This is a little bit like a palace coup. What is needed is a written declaration by the Vice President and a majority of the Cabinet. You are most unlikely to get that unless the inability is very clear. The reason is that the Vice President and the Cabinet serve under the President, are likely to be loyal to him, and are unlikely to want to incur his wrath.
5
Here is another part of Section 5:
Whenever the Vice President and a majority 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.
Hmmm.
“Such other body as Congress may by law provide.” This widely ignored provision gives Congress the authority, by law, to create another body to act in lieu of the Cabinet. The other body would be independent of the executive. That is important (unexercised!) authority.
Still, the Vice President remains in the driver’s seat. If he wants the president to remain in office, it appears that little can be done, even if Congress did create “another body to act in lieu of the Cabinet.”
A wrinkle: In principle, Congress could create that other body, and it could, in principle, put a lot of pressure on the Vice President. But we have to exercise our imaginations a bit to see how all that might work.
6
Even if Section 4’s requirements are met, the President can protest, and if he does so, he has the upper hand. Thus:
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.
See? If the President protests, he gets to be President again. If the issue goes to Congress, he gets to be President again unless both the Senate and the House decide, by a two-thirds vote, that he cannot do the job.
7
What’s going on here? A lot. Very briefly, the drafters of the 25th Amendment had this basic picture in mind:
The president is unable to do the job, and the nation needs a mechanism to respond. If the president knows that he can’t do the job, he can and should say so. If the president does not know, or cannot say so, or will not say so, then the Vice President and the Cabinet are entitled to say so. And if the president insists that he can do the job, he gets to keep doing it, unless it is so clear that he really cannot do the job that two-thirds of both houses vote otherwise.
8
That’s the formulation. Still, and please put to one side any particular president, the drafters did appear to miss something: the usual loyalty of the Vice President and the Cabinet to the president, and the potentially immense personal risks that they would take if they were seen as even thinking about the 25th amendment.
Making it even slightly easier to invoke the 25th amendment, and eliminating the veto power of the Vice President, would also create palpable dangers to the nation and to national stability. But it’s not entirely clear that the 25th Amendment gets it right.