How Does the 25th Amendment Work — and When Should It Be Enacted?
As the sun set over Washington, D.C., on the evening of August 24, 1814, British armed forces descended on the city with little more than destructive revelry and retaliation on their minds. Earlier in the day, the British had defeated American troops during the Battle of Bladensburg, a significant conflict in the War of 1812, and, once victorious, began marching towards the United States’ capital city. When they arrived at the U.S. Capitol Building, the British troops enacted a “horrifying spectacle“: occupying the structure, blanketing furniture and books and entire rooms in gunpowder paste, and setting it all ablaze in a destructive act of retribution that long stood as the singular breach of the world’s most essential and emblematic symbol of democracy.
For over 200 years this remained the sole instance of a hostile takeover at the Capitol Building — until January 6, 2021, when domestic terrorists, at the seditious urging of Donald Trump, stormed the structure. The attempted coup came in the wake of “the most secure [election] in American history” and was an effort to stop the certification of Joe Biden’s victory.
While the early January event became just the second-ever breach of the Capitol, there’s a striking difference in what spurred the attacks. The 1814 occupation involved a foreign adversary and took place during wartime. The 2021 occupation resulted from unprecedented provocation from a sitting president — a president whose refusal to accept the will of the people quickly devolved into exhorting American citizens to violently interrupt Congressional proceedings.
The insurrection that materialized on January 6 was frightening, shocking and devastating for American democracy. And it was the latest of many examples of Donald Trump appearing unfit to serve as president. Noted The Washington Post, “Senator Mitt Romney (R-Utah) released a blistering critique of Trump, saying the day’s events were the result of a ‘selfish man’s injured pride and the outrage of his supporters whom he has deliberately misinformed for the past two months and stirred to action this very morning. What happened here today was an insurrection, incited by the President of the United States.'”
Throughout Trump’s tenure, politicians and other leaders have called for enactment of the 25th Amendment — a Constitutional provision that, in part, empowers political officials to declare the president “unable to discharge the powers and duties of his office” and remove the leader from the role. Whispers about invoking this legal mechanism to oust Trump have grown into shouts in the wake of the Capitol invasion. And they’ve reignited questions about what the process of using the 25th Amendment would look like, including whether it would be a likely solution — or even a possibility — for putting an end to Trump’s staggeringly damaging and undemocratic behavior.
What Is the 25th Amendment, and Why Was It Created?
Before 1967 — the year the 25th Amendment was ratified as an official change to the Constitution — the U.S. government had no formal way to determine and install the next head of state if the president was deemed unable to fulfill their duties due to death, resignation or removal from office. The amendment created direction for this type of situation, and its first section officializes the longstanding practice of allowing the vice president to take over the president’s role upon the president’s death, resignation or removal.
The amendment also contains a few other points of interest. The legislation’s second section grants Congress and the president the ability to nominate and confirm a new vice president when (and if) that office becomes vacant. The third section of the amendment outlines how a president could temporarily declare themselves unfit to serve, temporarily delegate responsibilities to the vice president and then later resume their role after regaining the ability to discharge presidential powers and duties.
Questions about — and informal solutions to — presidential succession had existed long before November 22, 1963. But President John F. Kennedy’s assassination on that date revived discussions about officially outlining a process to follow and chain of command to implement if a president or vice president needed to be replaced. When Lyndon B. Johnson was inaugurated on Air Force One in the hours following Kennedy’s death, the United States was left without a vice president. This resulted in confusion about who would take Johnson’s place.
It wasn’t the first time such a situation had happened, but it was the proverbial straw that broke the camel’s back. JFK’s death sparked an effort to bring clarity to the “constitutionally vague” succession process, with Senators Birch Bayh and Emanuel Celler introducing joint resolutions in early 1965 “aimed at clarifying and defining the rules on presidential succession and inability in the Constitution.” These proposals created the framework for the 25th Amendment, which was ratified by state legislatures and officially certified in 1967.
The first three sections of this amendment stipulate who succeeds or serves (and how) in the wake of a presidential or vice presidential vacancy. They’ve been invoked and followed several times in the past few decades when the need arose. But there’s also a fourth section — one that various leaders and commentators began citing with increasing frequency throughout Donald Trump’s presidency. Section 4 of the 25th Amendment outlines, according to law professors Brian C. Kalt and David Pozen, what to do in the “dramatic case of a president who…cannot or will not step aside” even in the face of an inability to do their duty to the American public.
Has the 25th Amendment Ever Been Used?
Since it was added to the Constitution, sections of the 25th Amendment have been invoked a total of six times. Section 1 was used after President Richard Nixon resigned in the wake of the Watergate scandal so that Vice President Gerald Ford could assume the role of president. Section 2 has been used twice: when Nixon’s first Vice President, Spiro Agnew, resigned following a felony tax evasion charge and again when there was no vice president after Ford took over Nixon’s duties. Sitting presidents have invoked the amendment’s third section three times — once by Ronald Reagan and twice by George W. Bush — to give their vice presidents temporary control while they underwent medical procedures.
The fourth section has never been invoked, largely because its reference to inability is undefined and thus difficult to use as justification. Senator Bayh once informed his aides that “mental illness, pure and simple, is the only time this provision would be used.” The amendment itself offers no guidance on what behaviors or conditions would constitute an inability to serve or how politicians would obtain such information about a president’s mental health. And because Section 4 has never been enacted, there’s no existing precedent for the ways in which an invocation might play out or how leaders might determine a president’s incapacity.
The fourth section “didn’t settle the issue of what [an inability] is,” explained Jay Berman, an aide who worked with Senator Bayh in drafting what would become the 25th Amendment. “It provided a mechanism for addressing the issue.” This means the determination of incapacity is largely dependent on the opinions of a few key members of the federal government’s executive branch — and it explains why there’s been consistent hesitation to use it.
How Would an Invocation of Section 4 Play Out?
What the amendment does offer are concrete steps that describe what the invocation process and the resulting transfer of power could look like. To invoke the 25th Amendment, the vice president and an 11-member majority of the president’s Cabinet need to agree the president is no longer fit to serve. Additionally, they must base this decision on “reliable facts regarding the president’s physical or mental faculties,” not personal prejudice, notes John D. Feerick, a lawyer who helped draft the amendment’s original text.
As a group, the vice president and Cabinet members then need to write a letter outlining how, “in their opinion, the president is incapable of carrying out his functions and duties” and deliver the letter to the Speaker of the House and the President Pro Tempore of the Senate, a high-ranking Senator who has authority to act in the vice president’s absence. From the moment the letter is delivered, the president’s authority ceases to exist and the vice president steps into the role.
The process doesn’t necessarily end at this point, however. The president can send their own letter to the House Speaker and President Pro Tempore explaining that they’re still capable of carrying out their presidential duties, and this restores the president’s authority. From there, the vice president and Cabinet can again challenge the reinstatement by writing a second letter disputing the president’s ability to serve.
This once again puts the vice president back in charge, and it initiates a 21-day countdown during which Congress must vote on the matter and arrive at a decision to allow the president to resume their role — or not. Two-thirds of Congress must vote that the president can no longer do their job in order for the original invocation to stick and for the vice president to remain in charge. If these votes fail to reach the two-thirds threshold or Congress doesn’t hold a vote within the designated time frame, the president assumes control once more. It’s a complicated and potentially drawn-out process to be sure — but one that may be more relevant now than ever.
Is It Time to Invoke the 25th Amendment and Remove Donald Trump From Office?
Not long after Donald Trump’s swearing in as president in January of 2017, political pundits, state politicians, ex-federal judges, members of Congress and others started calling for an invocation of the 25th Amendment to remove him from office. Mental health professionals came forth in “historically unprecedented ways” to warn against what they deemed Trump’s “dangerous mental instability.”
Now, days after Trump incited an unprecedented takeover of the Capitol and fomented an insurrection, leaders at the highest levels of government and former U.S. political officials are making renewed calls for Vice President Pence to invoke the 25th Amendment and divest Trump of his presidential power for the remainder of his term. It may sound extreme — removing a president from office when his four years are just days away from ending — but the president’s actions have been equally — and unprecedentedly — extreme.
In the wake of the siege on the Capitol, many political leaders agree that invoking Section 4 is what’s necessary. Senate democratic leader Chuck Schumer said in a statement, “This president should not hold office one day longer… The quickest and most effective way — it can be done today — to remove this president from office would be for the vice president to immediately invoke the 25th Amendment. If the vice president and the Cabinet refuse to stand up, Congress should reconvene to impeach the president.” Speaker of the House Nancy Pelosi also called on Vice President Pence to take action, noting that “the president has committed an unspeakable assault on our nation and our people. I join the Senate democratic leader [Schumer] in calling on the vice president to remove this president by immediately invoking the 25th Amendment. If the vice president and Cabinet do not act, Congress may be prepared to move forward with impeachment.”
Publications and other organizations joined these Senators in denouncing Trump’s behavior, encouraging the president to resign if not outright calling for Pence to use the amendment. “If Mr. Trump wants to avoid a second impeachment, his best path would be to take personal responsibility and resign,” The Wall Street Journal‘s editorial board wrote. “It is best for everyone, himself included, if he goes away quietly.” The National Association of Manufacturers, an industrial trade advocacy group, submitted a press release encouraging Pence to “seriously consider working with the Cabinet to invoke the 25th Amendment [and] preserve democracy.”
Despite these clarion calls for action, it appears unlikely that Pence will utilize the amendment — The New York Times reports that Pence and several Cabinet members are opposed because invocation would only “add to the current chaos in Washington rather than deter it.” But as a mass exodus of Cabinet members abandons the sinking ship of the Trump presidency in its 11th hour and Senators turn their sights instead toward a second impeachment, one thing is clear: As Representative Adam Kinzinger (R-Ill.) so succinctly said, it’s time to “end this nightmare.”
