Part II History: Fact and Fiction, 6 Presidential Inability Since 1967

Section 4 of the Twenty-Fifth Amendment has never been used, though it should have been used when President Reagan was shot and nearly killed in 1981. He was unconscious for hours and incapacitated for days, but his administration decided not to transfer power to Vice President Bush. Several years later, Reagan’s staff considered Section 4 more seriously, due to concerns about the President’s performance. They decided against it. Reagan did, however, invoke the Twenty-Fifth Amendment’s less exciting Section 3 prior to a planned surgery, setting a precedent followed by President George W. Bush on two occasions.

Part II History: Fact and Fiction, 4 Presidential Disability Before Section 4

The history of the United States is peppered with Presidents who were unable, for various reasons, to fulfil their duties. Despite this, power never transferred until and unless the President died. Although the Constitution permitted transfer of power to the Vice President, it provided no process to make that happen. Some also believed that a disabled President who handed over power would not be able to retake power if he recovered. This dissuaded Vice Presidents from picking up the reins. A brief glance at history, from President Washington, through Presidents Garfield and Wilson, and on to President Eisenhower, shows why it was so important to pass Section 4. Eisenhower’s leadership and the aftermath of the assassination of President Kennedy set the stage for the Twenty-Fifth Amendment’s passage.

Part I How Section 4 Works, 3 Trickier Questions

This chapter asks and answers several questions that Section 4 does not resolve simply with its text. The questions include: (1) Who counts as “the Cabinet?” (2) Can Congress specify a decision maker other than the Cabinet? (3) What if there is no Vice President to invoke Section 4? (4) How are written declarations (of inability and ability) transmitted to Congress? (5) Can the President and Vice President agree to end the waiting period for his return early? (6) Could the Vice President and Cabinet or Congress manipulate the process to keep the President out longer? (7) If the President wins in Congress, does he take back power immediately? (8) What role do the courts have in resolving any disputes, if any?

Part I How Section 4 Works, 1 Section 4 Basics

The text of Section 4 of the Twenty-Fifth Amendment is dense and requires careful unpacking. Section 4 allows a president to be displaced from power if the Vice President and a majority of the Cabinet declare that he is unable to discharge his powers and duties. The text then provides for the President to return to power. If the Vice President and Cabinet oppose his attempt, Congress is empowered to resolve any disputes. All of this is subject to specific procedural requirements and time limits. This chapter presents all of these details in both bullet-point form and with a comprehensive flowchart.

Introduction

The introduction introduces four important themes that will be developed throughout the book. First, Section 4 is useful only in certain narrow circumstances. Second, tempting though it might be to use, Section 4 would not work well in other circumstances. Third, Section 4 is not a substitute for impeachment, nor an end run around it. Fourth, when Section 4 is invoked and the President responds that he is not disabled, he does not retake power immediately. There is a process for his regaining power, but it is certainly not instantaneous or unilateral.

Part III Section 4 in “Practice”, 10 The Four-Day Wait

When a President responds to a Section 4 action by declaring that she is not disabled, she does not take power back immediately—the Vice President and Cabinet are given four days in which to challenge her, during which time the Vice President remains in charge. But many people have misread this provision and think that the President retakes power immediately upon declaring she has recovered. Though the odds of a President following this misinterpretation may be small, the stakes are potentially enormous. A president who immediately regained control could purport to fire the Cabinet members who voted against her, which (according to her side) would prevent the remaining procedures in Section 4 from taking place. In that situation, the country could have two presidents leading two cabinets unless the correct understanding of Section 4 is widely known among the administration and by the public. This chapter offers proof of the correct interpretation of the four-day waiting period. It is clear from Section 4’s plain text, its legislative history, and its basic structure.

Part II History: Fact and Fiction, 5 Section 4: Creation, Evolution, and Approval

The immediate impetus for the Twenty-Fifth Amendment was President Eisenhower’s leadership in the wake of his health problems. After the Kennedy assassination, Senator Birch Bayh led the effort to enact the Twenty-Fifth Amendment. Section 4 underwent many changes before arriving at its final content in 1965 (it was ratified in 1967). These changes shed important light on what the framers intended Section 4 to accomplish, and what limits they intended it to have. The chapter includes a table that traces the evolution of individual parts of Section 4. It concludes with an examination of the framers’ intentions regarding specific issues discussed elsewhere in the book: the overall purpose of Section 4; how Section 4 interplays with the impeachment process; the roles of its decision-makers; technical details; and the tradeoffs between encouraging reluctant Vice Presidents and empowering power-hungry ones.

Part IV Section 4 in Theory, 13 Section 4 and Constitutional Law

Dealing with Section 4 differs greatly from the usual enterprise of constitutional law. First, Section 4 has never been used. Second, if it is ever used and questions arise, the answers will likely come from politicians, not a court. Third, Section 4 is about procedure, not the structure or powers of government or individual rights. Fourth, Section 4 offers some interesting twists on old debates about the use of history in constitutional reasoning. This chapter analyses Section 4 within the larger framework of debates about the best ways to approach constitutional law. In particular, it is much more sensible to analyze Section 4 in terms of the framer’s original understandings and original intentions that it is when interpreting other parts of the Constitution.

Part III Section 4 in “Practice”, 11 Other Questions

This chapter addresses a number of issues regarding the use of Section 4. They include: (1) That a President who declares he has recovered can retake power before the four-day waiting period expires, as long as the Vice President or Cabinet agree; (2) That if a dispute case goes to Congress, which has 21 days to decide, the President can retake power earlier than that if he wins a vote before the 21 days are up; (3) That Vice Presidents and Cabinets can declare over and over that the President is unable, and the President can declare over and over that he has recovered—two situations that require careful thought about how deal with them; (4) The unclear matter of whether Cabinet members who are only acting secretaries, temporarily filling vacancies, are allowed to participate in a Section 4 vote.

Part III Section 4 in “Practice”, 8 Section 4’s Simple Core

Since Section 4 of the Twenty-Fifth Amendment is untested outside the bounds of fiction, the best way to examine its “case history” is through hypothetical situations that tee up issues that might arise. The scenarios in this first chapter are simple: clear, total inability. When a president is unconscious for an indefinite period, when he is unable to communicate due to a stroke, when he is clearly delusional—these are the easy cases that showcase why the amendment was created. Stripping the President of power and restoring it once he has recovered are simple and non-controversial in these situations. These scenarios share an instant revocation followed by a careful and deliberate restoration. The President does not dispute his inability. Medical advice supports the opinion that the President is unable, and consensus exists to say he has regained his capacity. The entire process would be open to public scrutiny.