Fitness to serve: Presidential disability under the 25th Amendment

Presidential disability is viewed by some as a long-shot alternative to impeachment for removal of a sitting president. Sections 3 and 4 of the 25th Amendment govern cases of presidential disability. Under section 3, if the President declares (in a written declaration to the Speaker of the House of Representatives and the President pro tempore of the Senate) that he is disabled for any reason, the Vice President assumes his powers and duties as Acting President. Section 4 provides for cases in which the President may not be able to transmit a disability declaration. In these circumstances, the Vice President and the cabinet or “such other body as Congress may by law provide” can, by majority vote, declare the President to be disabled. It also empowers the President to declare his disability ended, again by written declaration, and resume his powers and duties. If, however, the Vice President and a majority of either the cabinet or other Section 4 body, rule otherwise, then Congress decides the issue. A vote of two-thirds of both houses within 21 days is required to determine the President to be disabled and continue the disability; otherwise, he resumes his powers and duties. Neither section 3 nor section 4 has been invoked since the amendment was ratified.

According to the CRS report, Presidential Disability: An Overview (July 12, 1999, RS20260) “Constitutional historians note that the [disability] clause does not define disability or differentiate between it and inability, although contemporary dictionaries characterized the former as a complete lack of power, and the latter as lack of ability to do a certain thing. Further, while specifying who acts as President in the event of presidential disability (the Vice President), the clause provides no guidance on how it would be invoked, by whom, or for what length of time, or on how a disability could be terminated or rescinded.”

In Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment, 30 Journal of Law and Politics 97 (2014), Daniel J. T. Schuker offers an approach to understanding, classifying, and assessing cases of presidential disability by distinguishing between (1) persistent or temporary physiological incapacity; (2) persistent or temporary logistical incapacity; (3) persistent or temporary physiological impairment; and (4) persistent or temporary logistical impairment. “During crises of presidential disability, administrations have felt obliged to devise ad hoc solutions. The framework developed here poses three basic questions to formulate a legal diagnosis of a President’s condition: How severe is the disability? When is the disability expected to end? Where is the disability located? The new framework indicates, based on a given diagnosis, who — either the President or the Vice President with other designated officials — would be best positioned to determine whether to invoke the Twenty-Fifth Amendment. This systematic approach, grounded in historical experience, should mitigate the uncertainties of what has so often proved a politically charged and disorderly process.” — Joe

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