When can the 25th Amendment be used against a president?

Charlie Crist and others have suggested that it is time to remove Donald Trump.
President Donald Trump arrives to speak at a rally Wednesday, Jan. 6, 2021, in Washington.
President Donald Trump arrives to speak at a rally Wednesday, Jan. 6, 2021, in Washington. [ JACQUELYN MARTIN | AP ]
Published Jan. 6, 2021

Editor’s note: Portions of this story were originally published by PolitiFact in 2017.

Back in 2017, a Democratic lawmaker tweeted: “POTUS is showing signs of erratic behavior and mental instability that place the country in grave danger. Time to invoke the 25th Amendment.” Similar tweets have gone out Wednesday as President Donald Trump seemed to encourage insurgence in the nation’s capitol.

Related: Charlie Crist: Remove Donald Trump from office with the 25th Amendment

How does it work?

What does the 25th Amendment say?

The 25th Amendment, added to the Constitution in 1967, sought to resolve several thorny issues of presidential and vice presidential power. It creates a succession plan for when these top two positions go vacant. It also allows the president to declare himself unable to fulfill his duties and transfer power to the vice president.

However, we’re mostly interested in the 25th Amendment’s fourth and final section, which allows someone other than the president to make a finding of presidential disability.

Section four authorizes the vice president and a majority of the Cabinet, or another body as determined by lawmakers, to declare a president “unable to discharge the powers and duties of his office.” Doing so would then elevate the vice president to the position of acting president.

The president can restore his powers by declaring that no inability exists. However, the same body that initially transferred power to the vice president can respond by essentially doubling down on their declaration that the president is unable to discharge his duties.

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Then, if Congress, by a two-thirds vote in both the House and Senate, agrees that the president is unable to serve, the vice president continues to act as president. Such a move could permanently strip a president of his powers — hence, why some legal analysts refer to section four as the “involuntary removal mechanism.”

What did the authors intend?

The push for Congress to formalize a blueprint for handling presidential disability gained traction after President John F. Kennedy’s assassination on Nov. 22, 1963 (though lawmakers had first considered it much earlier in American history).

“The assassination of President Kennedy ... produced a flurry of additional proposals dealing with the subject,” John D. Feerick wrote in a 1995 article in the Wake Forest Law Review. “These proposals were influenced by the sense at that time that, if Kennedy had lived, the country would have had to deal with the problem of presidential inability in a most tragic setting.”

As congressional hearings unfolded, little controversy surrounded the amendment’s first three sections, according to Feerick. Perhaps unsurprisingly, the real debate centered on when someone other than the president could declare him or her to be incapacitated.

The amendment’s principal author, Sen. Birch Bayh, D.-Ind., embraced an understanding that presidential inability would encompass both physical and mental inability, said Joel Goldstein, a law professor at St. Louis University, who’s closely studied the congressional record.

The formulation he adopted was put forth by Sen. Robert F. Kennedy, D-N.Y., who said presidential inability “involves physical or mental inability to make or communicate his decision regarding his capacity and physical or mental inability to exercise the powers and duties of his office.”

Another important architect of the amendment, Rep. Richard Poff, R-Va., held a similar view, according to Goldstein.

Poff said section four not only applied when the president, due to accident or illness, was unconscious or otherwise unable to make or communicate a decision, but also when “the President, by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand aside.”

On July 6, 1965, Congress formally proposed the 25th Amendment, and the necessary 38 states ratified it Feb. 10, 1967.

Legal experts told us the drafters used intentionally vague and open-ended language (i.e., a president who is “unable to discharge the powers and duties of his office.”) because they recognized they couldn’t predict every scenario in which a president could be deemed disabled.

But despite the definition’s fuzziness, Goldstein said “the record makes clear that section four was not intended as a means of removing the president simply because he or she makes an unpopular decision.”

The framers used deliberately broad language to allow for flexibility. But the record clearly shows they intended section four of the 25th Amendment to apply when a president is “unable to discharge the powers and duties of his office” due to either physical or mental inability, and not principally as a strategy for ousting an unpopular president.