President Trump’s recent behavior has reportedly prompted people at high levels of the administration to discuss whether his presidential powers could be transferred to Vice President Pence under Section 4 of the 25th Amendment to the U.S. Constitution. Speaker of the House Nancy Pelosi (D-Calif.) and incoming Senate Majority Leader Charles E. Schumer (D-N.Y.) have reportedly tried to call Pence to discuss invoking this amendment, a step Pence is said to oppose.
In a video released Thursday evening, Trump denounced the violence at the U.S. Capitol, which occurred after he encouraged his supporters at a large rally to march on the Capitol; promised a peaceful transition of power; and stated that “a new administration” will be inaugurated on Jan. 20 in an apparent effort to defuse calls to end his exercise of presidential powers.
However, there’s a lot of confusion about Section 4. Here’s what you need to know about the basics (for more on the 25th Amendment, go here).
The 25th Amendment covers presidential succession and inability
Ratified in 1967, the 25th Amendment addressed many gaps in America’s provisions for dealing with presidential succession and inability. The first three sections do the following: clarify that the vice president becomes president when a president dies, resigns or is removed but not when he or she is unable to discharge presidential powers and duties; provide a means to fill a vice-presidential vacancy; and provide a procedure under which a president can transfer their powers and duties to the vice president voluntarily if the president is “unable to discharge” them and reclaim them when the inability ends.
Section 4, which has never been used, provides procedures to transfer presidential powers and duties from the president to the vice president when a president is unable or unwilling to recognize his or her inability. Under current arrangements, it empowers the vice president and a majority of the principal officers of the executive branch, essentially the 15 heads of the executive departments. It authorizes the vice president and a majority of those officials to determine that the president is “unable to discharge the powers and duties of” the presidency and transfer those powers immediately to the vice president by so stating in letters sent to the speaker of the House of Representatives and the president pro tempore of the Senate. The vice president then assumes those powers as Acting President.
This isn’t like impeachment
Section 4 does not remove the president from office, as some have suggested. Unlike a successful impeachment, it allows the president to remain in office, and possibly resume the exercise of presidential powers and duties upon the return of his or her capacity.
How does this work? If the president contests the determination of his administration colleagues, he or she does not immediately resume presidential powers. The vice president and principal officers have four days to consider the president’s condition. During this four-day period, the vice president clearly continues to act as president. If the vice president and Cabinet majority reassert in writing to the congressional officers that the president is “unable,” the issue goes to Congress to decide in the next three weeks. The vice president continues to act as president during the period when Congress is considering the matter. If Congress wants to support the vice president’s determination, it needs two-thirds majorities in each chamber during that period, in which case the vice president continues to act as president.
However, contrary to some suggestions, the vice president can’t retain power, even this late in the term, based on a simple majority of either house. The two chambers can take the entire three weeks to consider the issue (or whatever shorter period remains in the presidential term) but a vote during that period by less than two-thirds of either house in support of the vice president’s position would immediately return the president to power.
Section 4 addresses presidential incapacity
Section 4 applies when the vice president and Cabinet majority determine that the president is “unable to discharge the powers and duties of” the presidency. Legislative history suggests Section 4 was not intended as a remedy against a president who made an unpopular decision. However, the formulation is deliberately broad and flexible to cover a range of circumstances that might preclude a president from discharging presidential powers and duties. The text and legislative record made clear that a president could be “unable” due to a physical, mental, emotional or logistical condition.
Although Section 4 is most likely to be invoked when a president is unconscious or in an analogous condition, it isn’t limited to those circumstances. Sen. Birch Bayh (D-Ind.), the principal author, said it applied to conditions “that would seriously impair” the president’s ability to perform the job. Much of the discussion looked at historical examples or hypotheticals of conscious-yet-compromised presidents. Rep. Richard Poff (R-Va.), a key House architect of the 25th Amendment, explained that Section 4 included situations when a president “by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand aside.”
Section 4 also allows Congress to replace the principal officers as the vice president’s co-decision-makers with “such other body” as it creates by law. Congress has never created such a body but if it did, that body would replace the principal officers for this purpose and would act with the vice president.
Citizens, executive officials and constitutional propriety
Section 4 entrusted the inability decision to administration insiders to protect a president from an unjustified partisan attack. Some also thought the determination that the president was unable to do his or her job would have more political legitimacy if made by the president’s associates. The amendment’s architects also thought that administration insiders would have relevant information regarding the president’s behavior.
Ultimately, the 25th Amendment’s architects trusted in the “constitutional morality” of citizens and “constitutional propriety” of decision-makers to protect the national interest when the facts and context indicated that a president is “unable to discharge the powers and duties” of the presidency.
Joel K. Goldstein is the Vincent C. Immel Professor of Law Emeritus at Saint Louis University School of Law and author of “The White House Vice Presidency: The Path to Significance, Mondale to Biden” (University Press of Kansas, 2016).