NOTE: There is an updated version of this topic published in an episode we published in 2022
Members of Congress from both parties have requested that the Vice President invoke the 25th Amendment to remove President Trump from office. Today we explore all four parts of this relatively new amendment with constitutional scholar and author of The Bill of Rights: A Users Guide, Linda Monk.
Transcript
[00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.
[00:00:05] Here's the truth. The president caused this. The president is unfit and the president is unwell. The president must now relinquish control of the executive branch voluntarily or involuntarily.
Nick Capodice: [00:00:17] You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: [00:00:19] I'm Hannah McCarthy.
Nick Capodice: [00:00:20] And that was a clip of Republican Congressman Adam Kinzinger from Illinois. On January 7th, 2021, he was calling for the vice president and the cabinet to invoke the 25th Amendment. So today we're going to try to explain the 25th as best as we can, why it was created, what it is and how it works.
Hannah McCarthy: [00:00:39] All right. So let's get to it. What does the 25th Amendment say?
Linda Monk: [00:00:43] The 25th Amendment? And I, I, I'm thinking that unlike in past times, we don't have to have me read all the words, the word like I've insisted sometimes.
Nick Capodice: [00:00:54] This is a dear friend to the show and a constitutional scholar who has in the past insisted things be read to the letter. Linda Monk, author of Bill of Rights A User's Guide.
Linda Monk: [00:01:03] But in general, the 25th Amendment is, well, long, relatively speaking, has four sections, the first of which says something that had been in practice but hadn't been in the Constitution, which is if something happens to the president, the vice president becomes president. Now, like a lot of other things in the 25th Amendment, there had already been precedents before the amendment comes in place, which is really kind of late.
Hannah McCarthy: [00:01:31] Late, like how late?
Nick Capodice: [00:01:33] The amendment wasn't ratified until 1967. The reason it was written in the first place was the Kennedy assassination in 1963. Lyndon Johnson became president after the death of JFK, but he himself had suffered a heart attack and the next people in the order of succession were quite elderly. So they wanted to lay out how to fill the office of the vice president during an administration.
Hannah McCarthy: [00:01:57] Ok, the first part Linda told us about that the vice [00:02:00] president becomes president if the president dies, resigns or is removed from office, what are the other three parts?
Nick Capodice: [00:02:08] All right. The second part says that if there is a vacancy in the vice president's office, the president appoints a new one with majority approval of both chambers of Congress. The third part says the veep can become president if the president themself submits a written statement that they're not going to be able to perform their job.
Hannah McCarthy: [00:02:26] Has this part ever been formally invoked?
Nick Capodice: [00:02:28] Yeah, sure. A handful of times. George H.W. Bush underwent surgery and he signed the request to make Dan Quayle president for a short time. And then his son, George W. Bush, did the same thing. He invoked the 25th twice for medical procedures, making Dick Cheney temporary president.
[00:02:44] "Because the president will be under the effects of anesthesia, he once again is elected to implement Section three of the 25th Amendment to the United States Constitution. Once enacted, the vice president will serve as acting..."
Nick Capodice: [00:02:57] But then we get to the very long, very tricky fourth part of the amendment,
Hannah McCarthy: [00:03:04] And this is the part about someone else declaring the president unfit to perform their office, right?
Nick Capodice: [00:03:10] Yeah.
Linda Monk: [00:03:10] If the president can't perform his or her job, who does it? And is that provided for in the Constitution? The 25th Amendment puts the constitutional language in. That said, it has not been invoked in terms of presidential disability. I want to focus on that part of it, because that's what we're talking about now. And we talk about disability as though it's physical disability. But I think what the current controversy about President Trump is raising is whether or not the president is capable of carrying out...now, maybe that's not a physical disability. Maybe that's other kinds of capabilities. And as we know now, The Washington Post has issued an editorial calling [00:04:00] for the 25th Amendment to be invoked. Both Republican and Democratic members of Congress have. And I'll just cut to the chase in terms of what I think is likely to happen there. The language is, is that a majority of the cabinet and the vice president have to be involved if it starts within the executive branch. If the president doesn't go along, it goes to Congress anyway and has to be a two thirds vote. That's a pretty big vote.
Hannah McCarthy: [00:04:39] So the vice president and a majority of the cabinet have to initiate it. And if the president disagrees and says, hey, no, I'm totally capable of being president, it then goes to Congress for that two thirds vote.
Nick Capodice: [00:04:53] Two thirds in both chambers.
Hannah McCarthy: [00:04:55] What about all those cabinet members who are talking about resigning in the wake of the attempted insurrection on January 6th who cast their vote?
Nick Capodice: [00:05:03] Ok, I don't want this to sound like a cop out. This is truly a murky constitutional area because the fourth section of the 25th Amendment has never been invoked before. The phrase in the amendment is, "a majority of the principal officers of the executive departments." So that is the cabinet. But they didn't specify who those principal officers are. A nineteen eighty five memo from the Justice Department interpreted it to mean the core cabinet secretaries, and one scholar I reached out to said this is all based on old Department of Justice memos in the 1960s. So we are flying in some heavy fog.
Linda Monk: [00:05:41] This is where I think Alexis de Tocqueville said it never ceases to amaze him how wonderful the Americans were at ignoring and avoiding the contradictions of their constitution. Oftentimes in our constitutional interpretation, it's what the political actors choose to do and [00:06:00] that that is part of the Constitution. It's not just supposed to be automatic words on paper. It's people exercising their judgment. And at a time like this, when there's so much strife and so much division, that's never more called for.
Nick Capodice: [00:06:18] That's the 25th Amendment, if you have any other questions about how our democracy works, just drop us a line at Civics101podcast.org.
