Section Four of the Twenty-fifth Amendment: Easy Cases and Tough Calls

ConLawNow, Vol. 10, 2019

7 Pages Posted: 8 May 2019

See all articles by Brian C. Kalt

Brian C. Kalt

Michigan State University College of Law

Date Written: January 23, 2019

Abstract

Section 4 of the Twenty-fifth Amendment transfers presidential power to the Vice President when the President is "unable to discharge the powers and duties of his office." The ambiguity of the term "unable" suggests that a wide variety of situations might be covered by Section 4.

But Section 4's defining characteristic is not the textual meaning of "unable," it is the structure that Section 4's framers created, which effectively limits Section 4 to a much narrower range of uses. The structure makes it simple to strip a President of his power when he cannot object, and it makes it hard to do so when he does object.

As a result, Section 4 is likely to be used only in one of the following four situations: 1. The President is unconscious or otherwise unable to communicate. 2. The President's impairment is so severe and so obvious that the Vice President and Cabinet agree — unanimously or close to it — both that the President must be pushed aside, and that they can be certain of winning the congressional vote if the President resists. 3. The President is arguably unable but is definitely about to do something irreversibly catastrophic. 4. The President is arguably unable, is being impeached, and needs to be sidelined in the meantime.

Keywords: Section 4, Twenty-Fifth Amendment, 25th Amendment, Presidential Disability, Presidential Inability

Suggested Citation

Kalt, Brian C., Section Four of the Twenty-fifth Amendment: Easy Cases and Tough Calls (January 23, 2019). ConLawNow, Vol. 10, 2019, Available at SSRN: https://ssrn.com/abstract=3369615

Brian C. Kalt (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States
517-432-6987 (Phone)
517-432-6879 (Fax)

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