Even a jaded observer must consider that the U. S. of A. has been protected through divine intervention more than once, especially considering the boneheaded law-making we practice. The “work-product” of the Congress over the past 50 years, particularly the past 21 years, has been so mendacious and partially understood that we are now $30 TRILLION in debt. But our foolishness extends even to the amending of our majestic Constitution, and one of the worst of the twenty-seven such “improvements” is Amendment XXV, “Presidential Disability and Succession.” The warped geniuses of the 89th Congress passed this abomination in 1965 and had it ratified in 1967. President Johnson signed it, although that step has no meaning in the ratification process in fact – just political theater.
What does the 25th purport to do that is so crucial as to be part of the Constitution? Ostensibly, its 396 words resolves the problems that might occur should a president become disabled and be unable to fulfill the duties of the president. Unfortunately, it creates multiple gray areas that practically invite a coup d’etat. Let’s look at the text.
Section 1
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
No problem, here. This has always been so. “Removal” is the time bomb.
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.
This has worked well as when Spiro Agnew resigned and Gerald ford was appointed and confirmed as Vice-President, then again when Nixon resigned and Ford named Nelson Rockefeller to be Vice-President following confirmation. And, it’s ‘safe,” since a President is unlikely to appoint a political enemy to be Vice-President, although the 46th may have.
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.
This seems to cover the matter of temporary disability such as medical incapacity that is going to end as the President heals from the disease or surgery involved. In fact it is rather loosely thought through, potentially creating a problem rather than a solution. The president holds the power at both ends of the equation: he alone decides to transmit the written declaration that he is or will be disabled, and he, alone, sends the written declaration that he is no longer disabled. The assumption is that the president is an honorable person who would do what is right and best in both circumstances, but should that not be the case or in cases of mental slippage, Section 4 of the Amendment will apply; that section is a relatively dangerous assemblage of words that are very likely to yield the opposite of the intention of this amendment.
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.
Trouble rests in these two paragraphs. In this case, the president’s disability, inability or, conceivably, unwillingness to perform the duties of his office, is a matter of the opinions and judgments of others. This implies a conflict of opinions between the president and either form of the committee of opposing opinions (The V.P. and Cabinet members, presumably, but described as the “principal officers of the executive departments,” which could include military personnel not of Cabinet rank – a bad idea, or some nebulous alternative “body” passed into “law” – how is not stated and questionable if the President refuses to sign it), and such a conflict could involve use of force to make the committee opinion effective. At that point, who in the Secret Service or White House guard contingent is loyal to whom? What forces would the committee of opposing opinions have at its disposal? What a mess.
The first paragraph of this section states that the Vice-President “shall immediately” assume the powers and duties of the office as Acting President. If the president is not in agreement with how that step is taken, can he transmit a written declaration to the President pro tempore of the Senate and to the Speaker of the House stating that he is no longer disabled? Now what?
Does the President’s written declaration dissolve the opposing opinions of either of the committees of opposing opinions? How quickly? Could the Vice-President “immediately” assume power at 1:30 PM, say, and give it up at 2:45 because of the President’s written declaration? Or, if the Vice-President is aligned with other powerful people who have been tolerating the President until a certain point is reached, would that group maintain a forceful restraint on the President, preventing such a transmittal as proposed in this Amendment? Holy cow!
We might think this is an impossible set of circumstances, except we are in the midst of all of them, right now.
The Vice-President and whichever committee of opposing opinions then has 4 days to re-state the supposed inability of the President. This causes the Congress to decide the issue if in session, or to assemble within 48 hours to decide the issue, BUT, Congress has 21 days to decide by 2/3 vote in both houses! During this period, is the President prevented from resuming his or her duties? All in all we’re looking at nearly a month of Constitutional leadership turmoil. If the Congress fails to rule with 2/3 majorities, the President can assume the duties of his office. Yeah, right.
Suppose the House and Senate create their undefined committee because of some dissatisfaction with the committee formed by the Vice-president; two committees of opposing opinions are extant. Nothing is said in the Amendment language about a “first-come, first-served” political courtesy that prevents there being two committees. Since the House and Senate have the roles of voting on either committee’s opinion of the President’s infirmity, one might assume that Congress’ committee would take precedence. They could simply refuse to vote on the Vice-president’s committee’s report, yet the Amend says they must take that vote with a certain period of time. Should they vote the V.P. report down by, in effect, vote for the result that matches their own report, what power does the Executive branch have to thwart implementation of the Congressional committee’s report? What power does the Congress have to enforce its report should it conflict with the V.P. report?
What a mess.
The whole process could be a bit more transparent and made medically sound. With hatred as a common political tool in the 21st Century, the numerous weaknesses of the current amendment simply invite political chicanery.
How much better it would be to obviate most of these problems. Suppose an amendment called for a periodically changing, confidential list of 20 or more medical and psychological doctors, well-recognized in their fields, who would be prepared to be called-upon in the event Section 3 or the first paragraph of Section 4 of the 25th Amendment were activated. A random selection of 5 from among these experts would be called to be a Committee of Evaluation regarding the President’s condition, and sworn to secrecy until 5 years following the President’s end of Presidential service. Those 5 would select one of the group to be a “Monitor” who would shadow the President for a period of time chosen by the group, not to exceed 5 days, in frequent consultation with the group. Such monitoring would be fairly intimate and include consultation with the President’s personal physician and access to all medical records and histories. This group, one hopes anonymously, would make its recommendation to a select, equally bi-partisan joint committee of the House and Senate, in secret. That committee would bring forth identical resolutions for both houses to vote on.
Only with a 2/3 vote in both houses could the Vice-President then assume the duties of Acting President. Should the President later transmit his or her declaration of ability to fulfill the duties of the office, the same Committee of Evaluation would reconvene and ultimately submit a second recommendation to the Joint Committee, in secret. Should the two Houses again vote 2/3 in the affirmative (within 5 days of receiving the second Evaluation) to declare the President still incapable of discharging his or her duties, the Vice-President shall continue as Acting President.
The President may, within 30 days, appeal his or her Congressional “suspension” directly to the Supreme Court which may, upon full hearing and discovery of all pertinent evidence, including Evaluations, reinstate the President or find him or her unable to discharge his or her duties and leave the Vice-President as Acting President. The suspended President shall then vacate the White House while retaining the rights and privileges of any retired President.
If the next Federal Election is a “Mid-Term” election, every state shall include a referendum question on its ballot that will return the President to office with a “Yes” vote, or keep him suspended and effectively “retired” until the following Presidential elections at which time he or she may run for his or her party’s nomination and subsequently, if nominated, run for a full term as President.
These proposed changes make clear the medical/psychological bases for taking the drastic step of unseating a President, and temper the purely political forces that might attempt to subvert a President. Finally, voting citizens deserve to have the final say should a President appeal to the Supreme Court and fail reinstatement. Prudence recommends these improvements by amendment to the Constitution.