The 25th Amendment Makes Presidential Disability a Political … – The Atlantic

Last week, in The New York Times, Ross Douthat became the latest and perhaps most prominent advocate of using the Twenty-Fifth Amendment to remove President Donald Trump from office. Section 4 of the Twenty-Fifth Amendment allows the vice president and a majority of the Cabinet to recommend the removal of the president in cases where he is unable to discharge the powers and duties of his office, and allows the House and Senate to confirm the recommendation over the presidents objection by two-thirds vote. Douthat argued that the Amendment should be invoked to stop what he calls a childish president who is unfit for office and who is unlikely to be impeached.

The response to Douthats suggestion was mixed. Jamal Greene argued for a broad reading of the amendment to remove a compulsively lying President would be unable to discharge the powers and duties of his office. On the other hand, Jonathan Bernstein at Bloomberg, Ian Tuttle in National Review, and John Daniel Davidson at The Federalist concluded, in different ways, that for elites to invoke a contested interpretation of the Twenty-fifth Amendment to remove the president would trigger a political crisis. Slates Dahlia Lithwick, in her summary of the Twenty-fifth Amendment commentary, argued that the most practical problem with the Twenty-fifth Amendment option is that it wont happen. The selfsame Cabinet and vice president tasked with assessing the president are still enabling him.

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Its true that the use of Section 4s involuntary-removal mechanism for the first time in American historyespecially for a president who is not ill and who still has public supportcould trigger a political crisis. Still, the constitutional test of the presidents being unable to discharge the powers and duties of the office was intended to be vague and open-ended. In 1995, Senator Birch Bayh, the father of the Twenty-fifth Amendment, quoted President Dwight Eisenhower, whose illness had helped to precipitate the drafting of the amendment, in support of the proposition that the determination of the presidents disability is really a political question.

In other words, both the president whose disability inspired the Twenty-fifth Amendment and the senator who helped to draft it viewed the definition of disability under the Amendment not as a medical decision, left to doctors, but a political decision, left to the vice president, the Cabinet, and ultimately Congress. If, at some point in the future, those officers decide it is more politically advantageous for the Republican Party to remove Trump under the Twenty-fifth Amendment than to allow him to be impeached for obstruction of justice, nothing in the text or original understanding of the Amendment would prevent them from doing so.

Because predicting the political future is impossible, lets take a deep dive into the history and original understanding of the Twenty-fifth Amendment. That history suggests that Section 4 of the Amendment was intended involuntarily to remove presidents who were clearly and unequivocally incapacitated to the point of being unable to discharge their dutiesin other words, terminally ill, in a coma, near death, or severely mentally incapacitated. But the precise definition of disability was left to the political process.

As Scott Bomboy has reported in a series of posts on the National Constitution Centers Constitution Daily, a presidential succession amendment was first contemplated after President Dwight Eisenhowers illness in the 1950s and became a reality after the Kennedy Assassination in 1963:

By 1963, Congress was debating an attempt to amend the Constitution to clear up all succession matters and add a procedure for dealing with a leader who became unable to perform the offices duties temporarily or permanently. This became a bigger issue with the realities of the Cold War and with President Dwight Eisenhowers illnesses in the 1950s.

The influential Senator Estes Kefauver had started the amendment effort during the Eisenhower era, and he renewed it in 1963. Kefauver died in August 1963 after suffering a heart attack on the Senate floor.

With Kennedys unexpected death, the need for a clear way to determine presidential succession, especially with the new reality of the Cold War and its frightening technologies, forced Congress into action.

The new President, Lyndon Johnson, had known health issues, and the next two people in line for the presidency were 71-year-old John McCormack (the Speaker of the House) and Senate Pro Tempore Carl Hayden, who was 86 years old.

The principal sponsor of the Twenty-fifth Amendment was Bayh, chair of the Senate Judiciary Subcommittee on the Constitution and Civil Justice, responsible for proposing constitutional amendments. Bayh served as the subcommittees chair for nearly two decades and he drove the process that resulted in the Twenty-fifth and 26th Amendments to the Constitution. (A third amendment championed by Bayh, the Equal Rights Amendment, was approved by the House and Senate, but it fell three states short of full ratification. But Bayh is still the only non-founding father to draft two enacted amendments to the U.S. Constitution.) Bayh proposed what became the Twenty-fifth Amendment on January 6, 1965, and it was ratified on February 10, 1967, 50 years ago.

Section 3 of the Amendment enables a president to declare himself temporarily disabled by sending a written declaration to the president pro tempore of the Senate and the speaker of the House stating that he is unable to discharge the powers and duties of his office. In this case, the powers and duties of the president are transferred to the vice president, who becomes acting president, until the president sends another a written declaration that he can resume his duties. Section 3 procedures have arguably been invoked three timesonce by Ronald Reagan and twice by George W. Bushduring medical procedures.

Section 4 of the Amendment, by contrast, enables the vice president and either the principal officers of the executive departments (the Cabinet) or another body as Congress may by law provide (a disability review body) to declare the president disabled by sending their own written declaration to the Senate president pro tempore and the House speaker. The president can respond in writing that he is not in fact disabled; the vice president and Cabinet (or disability review body) then have four days to respond. Congress then has 48 hours to decide the question (or 21 days if Congress is not in session.) If two-thirds of both houses of Congress decide that the president is indeed disabled, the vice president becomes acting president; otherwise, the president remains in office.

Section 4 procedures, involuntarily declaring the president disabled, have never been invoked. But there have been historical instances in which presidents became disabled, both physically and mentally. For example, Franklin Pierce and Calvin Coolidge experienced psychological breakdowns and debilitating depressions after the sudden and tragic deaths of their children. Woodrow Wilson had two strokes; the second was so severe it completely paralyzed him on his left side and left him unable to fulfill basic duties as he served out his last term in seclusion. And in the most relevant precedent, as George Packer reports in The New Yorker:

In 1987, when Ronald Reagan appointed Howard Baker to be his new chief of staff, the members of the outgoing chiefs team warned their replacements that Reagans mental ineptitude might require them to attempt the removal of the President under Section 4. Baker and his staff, at their first official meeting with Reagan, watched him carefully for signs of incapacitybut the President, apparently cheered by the arrival of newcomers, was alert and lively, and he served out the rest of his second term.

In proposing the Twenty-fifth Amendment, Bayh worked closely with John D. Feerick, who went on to serve as dean of Fordham Law School and is now a professor there. Feerick worked with Bayhs subcommittee to draft the language that eventually became the Twenty-fifth Amendment. He recounted the arduous process in a 1995 law journal article. As Feerick writes, the question of presidential succession was first addressed at the Constitution Convention in 1787. And the initial language about who would have executive authority if there were no president read as follows:

[I]n case of his [the President's] removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the Vice President shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed.

Incorporating an initial proposal by Hugh Williamson of North Carolina, Edmund Randolph of Virginia suggested that the succession provision be modified to read:

The legislature may declare by law what officer of the U.S.-shall act as Vice President in case of the death, resignation, or disability of the President and Vice President; and such officer shall act accordingly until the time of electing a President shall arrive.

James Madison objected that these words would prevent the filling of a vacancy by means of a special election of the President and suggested as an alternative the expression "until such disability be removed, or a President shall be elected. At least one member of the Convention, John Dickinson of Delaware, immediately recognized the difficulties inherent in Madison's wording. Dickinson remarked on the proposal: "What is the extent of the term 'disability' and who is to be the judge of it?""' His observations foreshadowed the difficulties that would later prove to be so perplexing.

In a 2011 article, Feerick adds that cabinet officials and scholars between the founding and the passage of the Twenty-fifth Amendment debated who should judge what counts as a presidential disability:

During President James Garfields illness in 1881, a number of well-known legal authorities were of the opinion that inability in the Succession Clause referred solely to mental incapacity. For example, Professor Theodore W. Dwight of Columbia Law School, one of the leading constitutional authorities of that time, held this view.22 Similarly, former Senator William Eaton of Connecticut stated, There can be no disability that the President can be conscious of, and It must be a disability, as, for example, if he were insane, which is patent to everybody except himself.

Others at the time were of the view that inability was not restricted solely to mental incapacity. Rather, a case . . . exists whenever the public interest suffers because the President is unable to exercise his powers . . . .Indeed, proponents of this view believed that the inability provision of the Succession Clause should be construed broadly, covering all circumstances that might cause a President to be unable to discharge the powers and duties of his Office. For example, it was written at the time in the New York Herald that, The word inability . . . means an inability of any kind . . . of the body or mind . . . temporary or permanent, . . . [which] disables [the President] from discharging the powers and duties of his office. Massachusetts Representative Benjamin Butler, when writing of President Garfields illness, said inability includes everything in the condition of a President which precludes him from the full discharge of the powers and duties of his office in which case the discharge of these powers and duties becomes immediately the duty of the Vice-president. Other distinguished authorities reasoned that whether or not an inability exists often depends on the surrounding circumstances.

In drafting the Twenty-fifth Amendment, Feerick and Bayh left open the question of what counts as a presidential disability. As Feerick notes, The terms unable and inability are undefined in either Section 3 or 4 of the Amendment, not as the result of an oversight, but rather a judgment that a rigid constitutional definition was undesirable, since cases of inability could take various forms not neatly fitting into such a definition.

Section 4 deals with the scenario when a president is unable or unwilling to communicate a disability. According to a Congressional Research Service analysis by Thomas Neale, Section 4s wording makes it clear that the Vice President is the indispensable actor in section 4: it cannot be invoked without his agreement. Under Section 4, the vice president, either acting with the Cabinet or a group designated by Congress, can declare the president disabled. If the president is able to disagree with that decision, the vice president then can start a procedure where two-thirds of the House and Senate must agree that the president cant perform his or her duties, and the vice president remains as acting president. In the CRS report, Neale also noted: It can be further suggested that Section 4, like the impeachment process, is so powerful, and so fraught with constitutional and political implications, that it would never be used, except in the most compelling circumstances, since its invocation might well precipitate, ipso facto, a constitutional crisis.

Evan Osnoss comprehensive article in The New Yorker, How Trump Could Get Fired, agrees that the question of what constitutes a Presidents fitness for officewhether physical or mentalhas been deliberately left open and hasnt yet been answered:

[T] he definition of what would constitute an inability to discharge the duties of office was left deliberately vague. Senator Birch Bayh, of Indiana, and others who drafted the clause wanted to insure that the final decision was not left to doctors. The fate of a President, Bayh wrote later, is really a political question that should rest on the professional judgment of the political circumstances existing at the time. The Twenty-fifth Amendment could therefore be employed in the case of a President who is not incapacitated but is considered mentally impaired.

The article goes on to examine the challenging question of how to define and diagnose any purported disability manifest in a president, including President Donald Trump, and how the Twenty-fifth Amendment procedures might apply. In practice, Osnos notes, unless the President were unconscious, the public could see the use of the amendment as a constitutional coup. Measuring deterioration over time would be difficult in Trumps case, given that his judgment and ability to communicate clearly were, in the view of many Americans, impaired before he took office. For this reason, Osnos concludes: The power of impeachment is a more promising tool for curtailing a defective Presidency.

The presidential health specialist Robert Gilbert agrees. In The Mortal Presidency: Illness and Anguish in the White House, Gilbert argues that Section 4 is clearly the most controversial and potentially the most nightmarish part of the Twenty-fifth Amendment. Gilbert adds that Except in instances of obvious and severe mental impairment (such as advanced senility or dementia), the Twenty-fifth Amendment is unlikely to be of much help in dealing with psychological illness. He writes: One can only imagine the public reaction if Vice President Charles Dawes had declared that President Coolidge was psychologically impaired because of his severe depression, that he (Dawes) was initiating the process of removing Coolidge from office.

All of this is true. And yet, in his 1995 New York Times op-ed, Bayh explained why it should not be up to a panel of doctors to determine presidential illness or disability for purposes of the Twenty-fifth Amendment:

Yes, the best medical minds should be available to the President, but the White House physician has primary responsibility for the President's health and can advise the Vice President and Cabinet quickly in an emergency. He or she can observe the President every day; an outside panel of experts wouldn't have that experience. And many doctors agree that it is impossible to diagnose by committee.

Besides, as Dwight D. Eisenhower said, the determination of Presidential disability is really a political question. The Vice President and Cabinet are uniquely able to determine when it is in the nation's best interests for the Vice President to take the reins.

Because the Twenty-fifth Amendment was intended to leave the determination of presidential disability to politicians, rather than to doctors, nothing in the text or history of the Amendment would preclude the vice president, Cabinet, and Congress from determining the president is unable to discharge the powers and duties of his office if they deemed it in their political interest to do so. Whether or not that unprecedented and, at the moment, improbable conclusion materializes, of course, remains to be seen.

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