Aron Solomon: The 25th Amendment and Presidential Illness

In the middle of the night, the 45th president of the United States revealed via a tweet that he and the first lady have tested positive for COVID-19.

As discussion of the 25th Amendment was immediate and viral over our social networks, a refresher seems in order.

The 25th Amendment to the Constitution of the United States of America addresses the ascension of the vice president to the role of chief executive in certain situations. Under the 25th Amendment, the vice president becomes president (as opposed to becoming the acting president) if the president dies, resigns, or is removed from office; and establishes procedures for filling a vacancy in the office of the vice president and for responding to presidential disabilities.

More specifically, there are four sections to the 25th Amendment, which has been used only six times since Congress approved the 25th Amendment on July 6, 1965, the states completed ratification by February 10, 1967, and President Lyndon Johnson certified the amendment on February 23, 1967. Only three of the four sections of the 25th Amendment have ever been used.

Section 1: Presidential succession

If a president is removed from office, dies, or resigns, the vice president immediately becomes president, not an acting president.

Section 2: Vice Presidential vacancy

If there is a vacancy in the office of vice president, the president nominates someone to replace the vice president. If a majority of both houses of Congress agree, that person becomes the vice president.

Section 3: Presidential declaration

A president can declare themselves unable to do their job. Once the president does this, the vice president becomes acting president (not president). The president can take back the presidency at any time by sending letters (to the president pro tempore and the speaker of the House) stating definitively that they are able to discharge the powers and duties of the presidency again.

Section 4: Vice Presidential–Cabinet declaration

Section 4 is the only part of the amendment that has never been used, though there have been times it has almost been invoked (more on this below). It allows other executive officials to declare the president unable to do his job. The vice president must agree to this, beginning a complex process that involves Congress and the potential for the president to seek to regain office.

The first use of the 25th Amendment occurred in 1973 when President Richard Nixon nominated U.S. Rep. Gerald R. Ford, R-Mich., to fill the vacancy left by Vice President Spiro Agnew’s resignation.

In less than a year, the 25th Amendment would once again find its place in history.

After President Nixon resigns under threat of impeachment due to the Watergate scandal, Vice President Ford, is sworn in as the 38th president of the United States on August 9, 1974, leaving the vice presidency vacant once again. This has been the only use of section 1 of the 25th Amendment in history, as Vice President Ford became president as soon as Nixon resigned.

The third use of the 25th Amendment was when President Ford nominated former Gov. Nelson Rockefeller, R-NY, as his vice president. After four months of extended hearings, Rockefeller was confirmed as the 41st vice president of the United States, the second person to fill the office under the 25th Amendment.

Since the Nixon/Ford era, the 25th Amendment has been invoked only three more times, each time involving a president needing anesthesia for a medical procedure. Each of these was a section 3 declaration and in each the president returned to office after this brief innovation of the 25th.

Moving back to today, what about a possible invocation of section 4 if President Trump is not actually infirm? Since this piece addresses how social media works in reality, it is important to note that there has been an immediate social media groundswell around the notion that the president might be untruthful in his statement that he has been infected with the COVID-19 virus.

In the highly unlikely event that this meme turns out to actually be the case, is there a legal argument to be made that this is proof that the 45th president of the United States is unfit to do his job?

Perhaps so.

While section 4 has in fact never been used, it has been strongly considered on several occasions and more than likely secretly considered on many others. In what is the most notable consideration of invoking section 4, President Reagan was considered by members of this cabinet to have lost much of his mental acuity. As a result, a meeting was set in which, unbeknownst to the president, key administration officials were there to gauge his mental capacities and if he did not perform well, they would seek to invoke section 4. Even his most ardent critics admitted that President Reagan actually performed remarkably well during the meeting, thereby ending any further serious talk of invoking section 4.

Could a cogent legal argument be made today that it would be appropriate to invoke section 4 of the 25th Amendment where a president fabricates news of becoming ill with the virus responsible for our current global pandemic? If this could actually be proven, it would not be beyond the scope of reasonable belief in late 2020 to imagine the machinations of the government of the United States working to effect a section 4 removal of the president, even (or especially) mere weeks away from the election.

Precisely on that note, here is a wildly theoretical idea perhaps worth consideration today of all days. Were the 25th Amendment to be invoked at any time between today and the November presidential election, could both the newly-empowered vice-president and the president be candidates to become the next president?

While this is perhaps too much for us to intellectually digest in real-time, it merits consideration. Here is just one angle. Imagine section 4 were invoked and as a result, there were legal challenges as to the constitutionality of its applicability in this situation. During the pendency of what could be prolonged and complex litigation (complicated by a Supreme Court in flux) the removed president makes a claim to the ongoing validity of his nomination, while at the same time the new president seeks to run for November “re-election” to the office.

What seems clear is that any of these situations could be used as both a shield and sword by motivated parties to delay the upcoming election – an idea that is also gaining oxygen on social media as this piece is being written.

 

Aron Solomon is the Senior Digital Strategist for NextLevel.com and an Adjunct Professor at the Desautels Faculty of Management at McGill University. Aron was the founder of LegalX at MaRS Discovery District in Toronto, one of the world’s first legal technology accelerators, and was elected to Fastcase 50 in 2015, which recognizes the world’s leading legal innovators, Aron regularly consults for large global corporations, law, and accounting firms.

 

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