ISPS Holds Event on the 25th Amendment
On Tuesday, January 12, ISPS hosted a webinar attended by 400 people on “The 25th Amendment: A Constitutional Mechanism for Removing the American President.” The session was organized in response to last week’s insurrection at the Capitol, which has prompted calls to remove President Donald Trump from office either through the 25th Amendment or through impeachment and conviction by Congress.
The event featured three panelists: Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale; John Feerick, the Norris Professor and former Dean of the Fordham University School of Law, who helped to draft the 25th Amendment to the Constitution; and David Mayhew, Sterling Professor of Political Science Emeritus at Yale. Alan Gerber, the Charles C. & Dorothy S. Dilley Professor of Political Science, Director of ISPS, and the Dean of the FAS Social Science Division at Yale, moderated the discussion.
What Is the 25th Amendment?
The 25th Amendment addresses the issues of presidential succession and incapacity. It stipulates that the vice president becomes president in the event of the president’s death, resignation, or removal from office. In the case of a vacancy in the vice presidency, the amendment allows the president to appoint a new vice president, subject to a majority vote of confirmation by the House and Senate.
The amendment also provides a process by which the president can declare in writing that he or she is “unable to discharge the powers and duties” of the office, in which case the vice president assumes those duties in an acting capacity until the president provides a written declaration that he or she can resume them.
Finally, the amendment provides a process by which the vice president – along with a majority of the cabinet or a majority of some other body provided by Congress in statute – can declare that “the President is unable to discharge the powers and duties of his office,” with the vice president assuming those duties in an acting capacity. If the president contradicts that declaration and the vice president and cabinet or some other body continue to hold that the president is incapable of executing his or her duties, then Congress must decide within 21 days whether the president can resume responsibility. In deciding such a dispute, a two-thirds vote in both the House and the Senate would be required to confirm that the president cannot resume his or her duties and to affirm that the vice president shall exercise power in an acting capacity.
Why the Amendment Was Needed
The event began with remarks by the panelists on what the 25th Amendment is meant to address and the history behind it.
Professor Amar explained that before the ratification of that amendment, there was essentially no mechanism for filling the vice presidency in the case of a vacancy. That office had, in fact, been empty for significant stretches in American history. After the assassination of President John F. Kennedy in 1963 and the ascension to that office of Vice President Lyndon Johnson, the vice presidency was again left vacant. The 25th Amendment was a response to this situation, passed on a bipartisan vote by Congress in July 1965 and ratified in February 1967. The necessity of that amendment was soon demonstrated during the Nixon administration. After Vice President Spiro Agnew’s resignation, Nixon chose Gerald Ford to be his vice president; after Nixon’s resignation, Ford picked Nelson Rockefeller.
Professor Feerick, who was responsible for helping draft the 25th Amendment, also described some of the history that necessitated its ratification. A key moment in the history of the presidential succession occurred after the death of President William Henry Harrison. Though some at the time asserted that Vice President John Tyler was now only an “acting” president, Tyler asserted that he was the president, setting a precedent for future successions. However, the issue of what to do in the case of an incapacitated president remained, as in the cases of James Garfield and Woodrow Wilson. In the twentieth century, President Dwight Eisenhower sought to set a firmer protocol for succession. In advance of a medical procedure, Eisenhower wrote a letter passing his power and duties to Vice President Richard Nixon temporarily, until he was ready to resume them. Eisenhower also anticipated situations where Nixon could declare the inability of the president to execute the office, but the president could reclaim his duties. In the aftermath of the Kennedy assassination, Senator Birch Bayh of Indiana utilized these ideas and developed a similar framework for an amendment.
Impeachment versus the 25th Amendment
Professor Mayhew compared the politics and history behind the two procedures for presidential removal: impeachment and the 25th Amendment. Impeachment, Mayhew noted, has been rare in American history, but since Watergate, has increasingly been utilized and threatened. In essence, the process has become something like a censure vote, a way for the House to signal its extreme disapproval of a presidential action without ensuring removal. By comparison, the 25th Amendment procedure has not become politicized in the same way. Mayhew considered how the amendment could potentially be a mechanism for a cabinet to replace a president on political grounds, akin to a parliamentary system, and he speculated on cases in American presidential history in which the vice president and cabinet might have been tempted to act had they had the option.
Is the Amendment the Right Tool?
The question-and-answer period addressed how the 25th Amendment applies to our current political crisis and the implications of its potential use.
The underlying question of the session was whether today’s crisis constitutes an appropriate moment for the use of the amendment to pass the powers of the presidency to Vice President Mike Pence. The panelists were asked what kind of precedent this would set. Professor Amar noted that the amendment already is designed to guard against palace coups by requiring the vice president to act affirmatively. His first preference, expressed in a recent op-ed, is that it would be best for President Trump to use Section 3 of the amendment himself to pass power to Pence, rather than Pence and a cabinet majority having to invoke Section 4 over Trump’s objection. Professor Feerick, who also has written a recent op-ed on invoking the amendment, expressed confidence that the amendment has been in effect for over fifty years and has not been misused. Finally, Professor Mayhew observed that a president cannot effectively discharge his duties if no one is listening to him or thinks he has gone berserk, so that could seemingly be considered grounds for being unable to fulfill the responsibilities of the office.
Given the ongoing efforts in Congress to both pressure the vice president to invoke the 25th Amendment and to impeach President Trump, another question asked whether the amendment option would be an admission of congressional weakness and whether impeachment was the more proper constitutional remedy. The panelists weighed the merits of each approach. Professor Amar pointed out that impeachment requires some standard of wrongdoing, while the 25th Amendment does not. Moreover, the amendment route could potentially be quicker, while the impeachment process is not generally set up well for precipitous action. Professor Feerick pointed out that while impeachment and conviction would remove (and potentially disqualify) the president from office, the 25th Amendment did not require that step. President Trump would remain in office, but would pass the power and discharge of his duties to the vice president.
A follow-up question asked about what impact invoking the 25th Amendment would have now, since President Trump’s administration has only a few days left in power. Both Professors Feerick and Amar pointed to foreign affairs and national security policy as a key consideration. The president’s ability to issue pardons was also raised as another factor. In response to a related question about whether the president can pardon himself, Professor Amar explained that a fundamental principle of law is that no one can be a judge in his own case.
The panelists were also asked to compare the current crisis of a president having incited an attack on the Capitol to past moments in American political history. Professor Mayhew pointed to the Watergate scandal as another example of problematic activities within the capital city being induced by presidential action. He also pointed to two examples of the Capitol building being endangered: one being when British forces set fire to the building during the War of 1812, and a second being potential Confederate threats to the Capitol during the Civil War. Professor Amar added that President Andrew Johnson had been impeached by Congress in 1868 partly for his rhetorical attacks against Congress.
Finally, the panelists were asked whether there are any shortcomings or fixes to the presidential succession process that should be made. Professor Amar argued that the current succession order in statute is a danger waiting to happen. Because legislative leaders are in the line of succession after the vice president – the Speaker of the House and the president pro tempore of the Senate – there is a chance that control of the presidency could pass to the other political party during divided government if both the president and vice president were somehow incapacitated. Instead, Amar suggested that control of the presidency should stay with the same political party. Agreeing with this position, Professor Feerick also suggested that further clarification on the role of acting secretaries was needed, along with stipulations for declaring who would judge any potential simultaneous disability of the president and vice president.
As ISPS Director Alan Gerber noted, political science scholarship offers critical tools to understand and address moments of political crisis. To that end, this event was the first in a series of ISPS Democracy webinars that will take place during the upcoming Spring 2021 semester (video link will be provided soon). Please join us for those events.