Paul Nicholson[1]

          “In the phrase adopted by the American Declaration of Independence, governmental authority rests on “the consent of the governed”.  And  there are . . . constraints within which any form of  governance must work.  One is the overarching principle that there is a priority of right over might”. [2]  And another is the prevention of  too much power being concentrated in too few hands. As Lord Acton once stated “Power tends to corrupt and absolute power corrupts absolutely. [3]

We have a government framed and defined by a written constitution which overarches everything.  Never is the desire of one man, or woman, or group, allowed to be imbued with such power as to impose upon the rights of others or to lead the state to ruin.[4]

Some scholars believe the principles embodied in the American Declaration of Independence and the Constitution were modeled from the Hebrew Bible, the Torah or Pentateuch of the Old Testament. In regard to the Torah and the limitations that should be placed on governments Rabbi Jonathan Sacks makes the observation that any command of a ruler which conflicts with Torah law is ultra vires (beyond legal authority) and need not, should not be obeyed.  For our government the constitution is our equivalent of the Torah and commands contrary to it should be considered null and void ab initio (from the beginning) and should not stand. 

So, what to do if the President of the United States dies, resigns or becomes “unable” or “unfit” to carry out the duties of office?  How does the Constitution deal with the succession to the Presidency?  It addresses this situation in two different ways:

First, Article II, Section 4 provides for the removal of the President[5]  upon the conviction of having committed Treason, Bribery or other high crimes and misdemeanors.

Second, the Twenty Fifth Amendment sets up a formal and detailed procedure to be followed in cases of removal, death or resignation and in the case of inability to perform the duties of office which is as follows:

A. In the Case of Removal from Office, Death or Resignation

If the President is removed from office through the impeachment process, then the Vice President becomes the President.[6]

 B.  In the Case of Temporary Disability to Perform the Duties of the Office

In the case in which the President finds that he or she is unable to perform the duties of office but does not actually resign the President shall send a written notice to that effect addressed to the President pro tempore of the Senate (not the Vice President) and the Speaker of the House of Representatives.  The Vice President then assumes the role of acting President until the actual President transmits written notice to the contrary to the same officials. [7]

When the President finds that he or she is able to resume his or her duties he or she shall deliver a written declaration of that fact to the President pro tempore of the Senate and the Speaker of the House of Representatives.  The President shall then resume his duties and the Vice President shall stand down. 

C.  A Declaration of Inability to Continue to Perform from Others

If the Vice President and a majority of either the principal officers of the executive departments (the Cabinet) or of “such other body as Congress may by law provide” delivers their written declaration that the President is unable to discharge his or her duties then he Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, if the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives a written declaration that no inability exists, the President shall resume the powers and duties of the 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.

          D. Determination by Congress

          Once that happens Congress is directed to decide the issue, assembling within forty-eight hours for that purpose if not in session.  Congress is further directed to resolve the issue within twenty one days of reconvening or within twenty one days if still in session.

          The determination is to be made by a two-thirds vote of both Houses as to whether the President is unable to discharge the powers and duties of office. If the determination is that the President is unable to discharge the duties of office then the Vice President shall continue to discharge those powers and duties as Acting President.  If the determination is that the President is able to discharge the duties and powers of office then the President resumes them and the Vice President stands down.  

          E.  Background of the Twenty Fifth Amendment

The Twenty Fifth Amendment was proposed in July of 1965 and was ratified in February 1967.  The events surrounding the assassination of John F. Kennedy prompted lawmakers to clarify the law with regard to presidential succession.  Prior to the adoption of the amendment there was some doubt as to the legal status of a vice president who stepped in to fill the shoes of the president when the president died or became disabled.  Was the Vice President simply the acting President, or did he actually become the President.

In his book about the making of the Constitution Yale law professor Akhill Reed Amar[8] reviews the history of the incidents where the ambiguity of the Constitution begged for a clearer provision as to presidential succession.  He points out that as statesmen pondered possible statutory and constitutional responses they discovered that American history was littered with relevant lessons. The question first arose in 1841 when President William Henry Harrison died after only one month in office. While the language of Article II seems to say that the Vice President becomes the acting President then Vice President John Tyler had other ideas.  He asserted that he was in legal effect the President not simply the Vice President acting as the President.

President’s Millard Fillmore and Andrew Johnson both followed the Tyler precedent but in their cases the ambiguity shifted to a different aspect of the problem.  “If a vice president in fact became president when he took over for his dead running mate, would the same be true if he acted to fill a power vacuum in a disability situation.”[9]

And there was the case of President James A. Garfield who was the victim of an assassination attempt and who having suffered a serious bullet wound lay in bed months before he finally died.  If his vice president Chester A. Arthur put himself forward as president and then Garfield recovered would he be out of a job? Article II was silent and did not say who determined if the president was actually disabled.

These questions came to a head due to the assassination of President John F. Kennedy.  Professor Amar raises the question of “what if instead of dying within minutes of being shot in the head, JFK had in fact survived, drifting in an out of consciousness, with uncertain prospects for a full mental recovery? What if the bullet had seriously impaired his cognitive functions but in a way he himself did not understand and refused to acknowledge?” It was unclear at that time and under those circumstances whether the Vice President could lawfully assume the powers and duties of the presidency.  It was also unclear how and by whom the question of disability was to be decided.  In the modern world of nuclear weapons and ballistic missiles the nation could not afford to be leaderless even for a few minutes.  And could we afford to have a shaky finger on the button?

These concerns resulted in the adoption and passage of the Twenty Fifth Amendment.

But recent events have raised yet another question to be resolved either by amending the law again or interpreting it.  If Congress were to invoke the Twenty Fifth Amendment to remove the President it would need the agreement of the current Vice President.  And, on what grounds would he be removed?  In past instances the issue has involved physical disability as in Garfield’s case.  Could Congress expand the definition of disability to include mental instability or dangerous conduct and if so how would such an allegation be proven?  In raising his question about a “shaky finger” on the button professor Amar has hinted that mental instability may very well be sufficient grounds to trigger the vote in Congress. 

Congress has the power to impeach for Treason, Bribery, or other high crimes and misdemeanors.  It also has the power to remove the president if the Vice President and either a majority of the cabinet or some other body constituted by Congress finds that the President is unable to discharge the powers and duties of his office[10].  It is unclear as to exactly what is meant by “unable to discharge” as in past cases the factual situation involved physical disability. 

It will be interesting to see what, if any, action Congress takes.  After the events of January 6, 2021 many Congressmen feel compelled to act so as to prevent further acts of violence.[11]  And, will the events of January 6th bring the two parties in Congress together in a way which would allow them to take quick and decisive action.

[1] B.A. Hendrix College, J.D. University of Arkansas.

[2] Sacks, Covenant and Conversation, Leviticus: The Book of Holiness (Jerusalem: Maggid, 2015). 

[3] Supra. , Page 93.  The phrase comes from a letter written by Lord Acton in 1887. See Martin H. Masner and Rosaline Fergusson., The Facts on File Dictionary of Proverbs (New York:  facts on File 2002, 225).

[4] An example of a one leader corrupted with power is the story of Rehoboam the son of King Solomon  as related in the Book of Kings. Rehoboam chose to ignore the will of the people and suffered the division of Israel into two kingdoms because of it.   

[5] “. . . and the Vice President and all civil officers of the United States.” 

[6] Amendment XXV, Section 1.

[7] Supra, Section 3

[8] Akhill Reed Amar, America’s Constitution – A Biography (New York: Random House, 2005) p. 448-449.

[9] Supra at 448.

[10] At this writing the author understands that the Vice President will not agree to notify Congress that the President is “unable” to perform the duties of office.  This leaves Congress with the impeachment procedure as its only alternative to removal.

[11] It is interesting to note that the Fourteenth Amendment, Section 3 states that no person shall be eligible for election to Congress or “hold any office, civil or military, under the United States, or under any State, who having previously taken an oath . . ., as an officer of the United States, to support the Constitution of the United States (who) shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”  Some Congressmen are arguing that the actions of the current President may fall under this provision and bar him from holding federal or state office in the future.

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