Bob Schwartz

Ratified in 1967, in the wake of the JFK assassination, the Twenty-Fifth Amendment of the Constitution concerns the orderly way to deal with a president unable to carry out his duties.

There have for a while been discussions of whether the current president is mentally fit for office. This week, as he evidences the psychological effects of steroid therapy, of Covid, and of political stress, the question is more focused than ever.

By coincidence, this week sees the publication of Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment by Michigan State law professor Brian C. Kalt.

The long and complex Section 4 reads:

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.

This has never been invoked and there is no litigation on what it means or how it works. Two things are clear.

The phrase “unable to discharge the powers and duties of his office” (written in 1967, before the drafters understood that it made complete sense to neutrally say “the office” or “their office”) is open to interpretation. What does “unable” mean in this context?

The process is intended to be careful and onerous. It is not a judgment to be made lightly. The decision is spread among a large number of people, so the judgment of even the most partisan or least aware would be overweighed by the prudent and patriotic.

In the present case, even if Trump is mentally unfit, the chance that the amendment would successfully be invoked and applied is very small—even if his psychological condition continues to worsen.

In the future, who knows what becomes of the amendment? Maybe, with the current experience, it will be revised to include mental unfitness. And while they are at it, maybe they can implicitly acknowledge the possibility that the president might not be a “he.”