Things to Do in Dirksen When You’re Dead (Reprise)

In case you don’t get the reference, see here. Anyway, I have been meaning to write something about the 25thamendment for a while. This might seem like an odd time to do so, but there are distinct issues that may arise during the period between November 3, 2020 and January 20, 2121. So here goes.

The world’s leading expert (possibly the only expert) on the 25thamendment is Professor Brian Kalt of the Michigan State University College of Law. He has written a book called “Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment,” which you can and should buy on Amazon or wherever. (The numerical references in this post are to my kindle version of the book, which may or may not correspond to the hard copy). Even though almost everything I know about the 25thamendment I learned from Professor Kalt, I am not entirely in agreement with his take on it.

The key issue, for our purposes, relates to the meaning of the phrase “is unable to discharge the powers and duties of his office,” which is used in both sections 3 and 4 of the amendment. Under section 4, which governs the involuntary transfer of power from the president to the vice president, the vice president immediately assumes the powers and duties of the presidency as “Acting President” whenever he and a majority of the “principal officers of the executive departments . . . 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.”

Professor Kalt stresses that section 4 “was meant neither to cover policy disagreements, however intense, nor to rectify misuses of power by a foolish or ineffective leader.” (55) The legislative history of the 25thamendment shows that Congress “focused on past Presidents who had been incapacitated, and ignored Presidents who had been feckless or inept even in the most damaging ways.” (54) The garden variety case for an invocation of section 4 was a president in a coma or otherwise completely incapacitated or incommunicado.

On the other hand, the text of section 4 is clear that it is not limited to such situations. The provision expressly contemplates the possibility that the president and the vice president/acting president will disagree about whether the former was or remains “unable to discharge the powers and duties of his office.” In such eventuality, section 4 provides a process for resolving the disagreement. The framers of the 25thamendment therefore anticipated that a president who is both conscious and able to communicate in a coherent fashion will nonetheless be ultimately determined to be unable to discharge the powers and duties of his office. As one key member of Congress remarked during the debate on proposing the amendment, section 4 covers “the case when the President, by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand down.” (54)

Parsed closely, that quote raises more questions than it answers. It suggests that a president could be declared “unable” because he is “unwilling” to make a “rational decision” about whether to stand down, which seems rather circular. The larger point, though, is that the 25thamendment does not attempt to define with any precision the line between inability, on the one hand, and ordinary errors, abuses, ineptness or incompetence in the execution of the president’s office, on the other. Instead, the framers left it to the process they designed to discern where that line is. Continue reading “Things to Do in Dirksen When You’re Dead (Reprise)”