The Story of the 25th Amendment, According to the People Behind It
Posted September 7, 2018 7:20 p.m. EDT
The health troubles of President Dwight D. Eisenhower. The long shadow of how Woodrow Wilson’s wife assumed a role in the presidency after he became ill. The assassination of John F. Kennedy. These crises served as a backdrop more than 50 years ago for Congress to settle what should happen if a president is left unable to govern.
The matter turned up again Wednesday, when The New York Times published an Op-Ed by an unidentified Trump administration official who wrote that there had been “early whispers within the Cabinet of invoking the 25th Amendment” because of the “instability many witnessed.”
The amendment, ratified in 1967, clarified the succession to the presidency and offered a mechanism for an acting president if the vice president and a majority of the Cabinet deemed a president “unable to discharge the powers and duties of his office.” The provisions concerning an involuntarily declared incapacity have never been used.
In interviews this week, three men who were involved in the design or enforcement of the 25th Amendment — especially Section 4, which deals with incapacity — reflected on its history and the discussions about whether it should be invoked now.
The interviews, conducted separately, have been condensed and edited for clarity.
— A mounting national worry, and a debate in Congress
John D. Feerick, a lawyer who helped draft the amendment, said lawmakers were talking about the succession issue before the Kennedy assassination.
FEERICK:When the assassination happened, there were articles in The Times and The Herald Tribune and Walter Lippmann was writing, so there was a lot of interest on the subject of succession and disability.
Although he voted against the amendment as a young senator, Walter F. Mondale, who was later vice president under Jimmy Carter, said Congress was well aware that it needed to work toward a constitutional standard before another national emergency.
MONDALE: There was a strong feeling that we needed some way to fill the vacancy if a president died or retired or whatever and we needed to have a vice president. Then there was this question — the toughest part of the amendment — and that was, “What do you do with a disabled president who doesn’t know he’s disabled or accept it?”
Jay Berman, a longtime aide to Sen. Birch Bayh, the amendment’s Senate sponsor, recalled that Congress recognized that presidents could suffer many ailments, and so the amendment does not detail the conditions that could necessitate a transfer of power.
BERMAN: It was not only the question of the death of a president, but there were issues that were conjured up about what had gone on during the Wilson presidency.
There were questions raised about mental incapacity, and it was certainly contemplated that that would be within the realm. But the more you spell out in a constitutional amendment, the less chance you have of enacting it.
There was a lot of time spent on the dynamic between President Eisenhower and Vice President Richard Nixon about their transfer of power. Both were participants in our process after they had left office: President Eisenhower was very much involved in our negotiations, and Vice President Nixon actually testified before our subcommittee.
— The need for support from the vice president and the Cabinet
FEERICK: The vice president is there, in part, because if a vice president doesn’t feel it’s appropriate, the office of acting president shouldn’t be forced upon him. A vice president is a check.
It was thought that they were all involved with the president, familiar with what was going on and would be in the best position to know from all the information and facts that they have as to whether a particular circumstance or situation was a basis for exercising Section 4 powers and making a declaration of removal from his powers and duties.
MONDALE: It should be a serious hill to remove an elected president, and it shouldn’t be easy at all. And to ask the vice president, that means there’s real trouble.
— Preparing for possible succession
MONDALE: Carter was in good shape, mentally and physically. I don’t recall us ever talking about it. You’re always anxious not to raise suspicions in the president’s mind that you’re thinking about succeeding him.
The only experience I had with it was not very dramatic. The president had a cyst and thought he had to go in for surgery. He called me and said, “You’re going to be president for a day.” It turns out that he didn’t have to do that, and I missed my chance for the one-day presidency.
If it was really serious, if he couldn’t be president anymore, couldn’t be president for a long time, I probably would have called the Cabinet together and said, “What should we do?”
— The 25th Amendment in the age of Trump
BERMAN: I’m not surprised that people hit upon the 25th Amendment. The defining characteristic of Section 4 was always the idea that there is a difference between unfit and unable. In the deepest recesses of my heart and my mind, I know that Donald Trump is unfit to be president — but he is not unable. In fact, he’s very able to carry out all of the terrible things he promised he would do.
He was chosen, and anyone who thought he would behave any differently, something is wrong with them.
FEERICK: The amendment was not a license to easily remove a president who has been elected by the people from the powers and duties of office.
The amendment was there as a safety net in dealing with incapacity, and just how it affects one’s discharge of the powers and duties of the office can only really be come at from the standpoint of those who have knowledge of what’s going on and maybe needing assistance, at times, of doctors.
— The tipping point for invoking Section 4
MONDALE: I don’t know that we’re there. But if a president is absolutely off his rocker — not stable, can’t do the job — that’s a very dangerous job to have somebody like that in.
I’m very reluctant to use the 25th Amendment except in the gravest and clearest of circumstances. There’s a huge 25th Amendment club hanging over a president, and it’s rarely discussed. I think if Trump did nothing else, he’s raising this issue on a serious basis.
BERMAN: I think the important thing is to look at how there is a clear distinction between unfit, which is basically a political judgment, and unable.
If it does get raised, it would sully the use of the 25th Amendment in future years. I would be troubled by the fact that it might be mistakenly applied, or someone would seek to apply it in a situation that didn’t justify it, that it might make it more difficult in the future.