What if the president really was mentally or physically disabled to the point that he or she couldn’t perform the job? The 25th Amendment has an answer to that question.
MANY commentators, and even some elected officials, have started to describe President Donald Trump’s actions with words like “unhinged, “erratic” and “mental dysfunction.”
Psychoanalysts (but not psychiatrists) have formally abandoned the “Goldwater Rule” that earlier barred them from commenting on the mental health of public officials unless they had personally examined the subject of their assessment. A past leader of the American Psychoanalytic Association said, “We don’t want to prohibit our members from using their knowledge responsibly.”
Of course, one person’s idea of “unhinged” might be another person’s idea of someone who just says what he thinks. But what if the president really were mentally or physically disabled to the point that he or she couldn’t perform the job? The 25th Amendment has an answer to that question. That amendment, proposed by Congress in 1965 and approved by enough states in 1967, responded to several unanswered questions left by the Constitution’s Article II, Section 1, questions like: What is the procedure for deciding that a president is incapacitated? Is the vice president just an “acting president” when the nation’s leader dies? Must a new vice president be chosen, and how?
These unanswered questions led to real issues during America’s first 175 years. When President William Harrison died in 1841, there was controversy over whether Vice President John Tyler became a full president or only “acted” in that job. When President Abraham Lincoln was assassinated, the country was without a vice president for more than three years. When President Woodrow Wilson was incapacitated by a stroke in 1919, his wife Edith, close aides and his doctor hid the extent of his disability, and the nation lacked a truly effective president through the end of his term. When President Dwight Eisenhower experienced a heart attack and other serious health problems, the extent of Vice President Richard Nixon’s power was unclear.
After John F. Kennedy’s assassination, Congress finally proposed a constitutional amendment to address these problems, and the states quickly approved it.
Under the 25th Amendment, it is now crystal clear that when a president dies in office, the vice president assumes the full presidency. It also provides that if the president declares that he or she is unable to carry out official powers and duties, those are discharged by the vice president until the president formally declares: “I’m back!”
Now for the interesting part.
The 25th Amendment also provides that if the vice president and a majority of the Cabinet (eight members) jointly declare that the president is unable to discharge his or her responsibilities, the vice president immediately assumes the powers and duties of the presidency.
The president can attempt to resume those responsibilities, but if the vice president and the Cabinet stick to their guns, the question of the president’s incapacity is then bumped to Congress, which has 21 days to decide who’s in charge. If two-thirds of both the House and the Senate agree that the president is incapable of doing the job, then the vice president continues as “Acting President.” Otherwise, the president resumes the full powers and duties of office.
Could this really happen with Trump? Might Vice President Pence ever decide that his boss was sufficiently “unhinged” to warrant action? Would the Cabinet and Congress back up Pence?
Those are all political questions, not legal questions. But at least the Constitution has a legal answer.