If the vice president and the Cabinet conclude a president is unwell, they can legally do something about it.
Updated Feb 18, 2019, 2:07 PM UTC
Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.
The president of the United States has, legally speaking, a ton of power. He can fire the head of the country’s federal investigative agency. He can decide, unilaterally, to give ultra-classified information to foreign leaders. He has essentially unconstrained authority to use nuclear weapons however he sees fit.
But what if the president’s closest advisers were to conclude he was unfit for office?
According to former Deputy FBI Director Andrew McCabe, Deputy Attorney General Rod Rosenstein briefly discussed just that possibility in 2017, in the days after President Donald Trump fired FBI director James Comey.
Specifically, that’s Section 4 of the 25th Amendment to the Constitution. The amendment states that if, for whatever reason, the vice president and a majority of sitting Cabinet secretaries decide that the president is “unable to discharge the powers and duties of his office,” they can simply put that down in writing and send it to two people — the speaker of the House and the Senate’s president pro tempore.
Then the vice president would immediately become “acting president,” and take over all the president’s powers.
Let that sink in — one vice president and any eight Cabinet officers can, theoretically, decide to knock the president out of power at any time.
If the president wants to dispute this move, he can, but then it would be up to Congress to settle the matter with a vote. A two-thirds majority in both houses would be necessary to keep the vice president in charge. If that threshold isn’t reached, the president would regain his powers.
Section 4 of the 25th Amendment has never been invoked in reality, though it’s a staple of thriller fiction. But there’s been a surge of interest in it throughout Trump’s presidency, as reports of the president’s bizarre behavior behind closed doors have piled up, and as his top officials have kept anonymously telling reporters that he’s unfit to govern.
Trump, for his part, responded to McCabe’s comments with fury, accusing him and Rosenstein of “planning a very illegal act.” And though it seems the discussions were brief and never went anywhere, from what we know, it does seem Rosenstein’s concerns were more about the president’s possible corruption and ties to Russia than his physical or mental health. (Rosenstein has since released a statement through the Justice Department saying that, “based on his personal dealings with the President, there is no basis to invoke the 25th Amendment.”)
Whatever the current circumstances, an enormous amount rests on any president of the United States’ fitness for office. The 25th Amendment does exist as a failsafe that can theoretically be used if any president truly does appear to be unfit — though one major challenge may be having the competence to carry it out without causing an even greater disaster.
President Woodrow Wilson was debilitated by a stroke toward the end of his second term in office. Topical Press Agency/Getty
The framers of the Constitution were farsighted about many things, but presidential succession was not among them. The text was vague on several matters, including on whether the vice president fully becomes president if the sitting president dies or resigns (in practice, the answer was interpreted as “yes”), and on how to fill a vice presidential vacancy in the middle of a term (in practice, the answer was interpreted as “you can’t”).
Most interestingly for our purposes, the Constitution’s original text states that a president could be removed from office for “inability” but gives zero specifics about how this would actually be determined or carried out. So when President James Garfield was bedridden after being shot and President Woodrow Wilson was debilitated by a stroke, they simply lingered on in the presidency without doing very much for months, because no one knew what else could be done while they were still drawing breath.
These scenarios may not have been so bad in the United States of the 1790s, but by the mid-20th century the country had become a global superpower, and modern communication tools created omnipresent demands for presidential decisions and actions.
The chaos and instability that followed John F. Kennedy’s assassination finally spurred Congress to move toward solving these problems. For once, it moved quickly, passing what became the 25th Amendment to the Constitution in 1965 and winning its ratification in the states by 1967.
The new amendment cleared up that yes, if a president died or resigned or was convicted of impeachment crimes, the vice president would fully become president. It provided, finally, for a simple way to fill a vacant vice presidency — the president nominates someone, and both Houses of Congress take a vote. It allowed for a president laid low by surgery or injury to voluntarily transfer their powers to the vice president and then easily get them back with a written declaration that he was healthy again.
And then there’s Section 4 — which is about how the vice president and a majority of the Cabinet can deprive the president of his or her powers without consent.
Sort of. There are three major parts to Section 4 of the 25th Amendment. The first part establishes how a president can be quickly stripped of his or her powers due to inability.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
A few notes here. First, the power to sideline the president for inability is given to the vice president and a “majority” of “the principal officers of the executive departments.” (President Reagan’s Justice Department interpreted this to mean the main Cabinet departments, which today number 15.) Theoretically, Congress can also create and empower some “other body” that could make this declaration, but so far it has not done so.
So all the vice president and eight Cabinet secretaries have to do is put in writing that the president is “unable” and send that message to the Speaker of the House (currently Nancy Pelosi) and the Senate’s president pro tem (currently Chuck Grassley (R-IA)). Then the vice president “immediately” takes on the president’s “powers and duties.”
Importantly, though, the veep only becomes “acting president.” So the elected president hasn’t lost their office yet, just their powers — and not necessarily permanently, as we’ll see in a moment.
Finally, there is zero elaboration on what it would mean for the president to be “unable to discharge the powers and duties of his office.” There is no specification even that it refers solely to health. In theory, it could entail not just physical inability but a judgment call on mental health or even, conceivably, poor character or simple disagreement. It’s really up to the VP and Cabinet to interpret it.
Section 4 continues:
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.
This is a mouthful, but the gist is that the president can tell the speaker of the House and Senate president pro tem that he or she are in fact not unable to perform their duties, and that he or she wants their powers back. You can imagine this happening if the president regains consciousness from some injury or ailment — or if he or she simply disagrees that they are unfit for office.
If the president does this, he or she would get their powers back in four days — unless the vice president and at least eight Cabinet officials say, in writing, that he is still unable. Then the vice president will remain in charge for the time being, and Congress will have to step in to settle this dispute. The rest of Section 4 is about this contingency:
Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
So Congress would vote on whether the president is in fact “unable.” If two-thirds of both the House and Senate vote that he or she is, then the vice president would remain in charge as acting president.
If they fall short of that margin in either House, or simply fail to act within 21 days, the president would regain his or her powers.
