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How Is Presidential Disability To Be Determined

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Section : President’s Declaration Of Inability

President Biden and Vice President Harris Deliver Remarks

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 3 allows for the voluntary transfer of presidential authority to the vice president by the president declaring in writing to be unable to discharge the powers and duties of the presidency. The vice president then assumes those powers and duties as acting president the vice president does not become president and the president remains in office, although without authority. The president regains those powers and duties upon declaring, in writing, to be again able to discharge them.:112-3

Section : Declaration By Vice President And Cabinet Members Of President’s Inability

Section 4 addresses the case of a president who is unable to discharge the powers and duties of the presidency but cannot, or does not, execute the voluntary declaration contemplated by Section 3.:117 It allows the vice president, together with a “majority of either the principal officers of the executive departments or of such other body as Congress may by law provide”, to issue a written declaration that the president is unable to discharge his duties. Immediately upon such a declaration being sent to Congress, the vice president becomes acting presidentwhile the president remains in office, albeit temporarily divested of authority.

John Feerick, the principal drafter of the amendment,:xii,xx:5 writes that Congress deliberately left the terms unable and inability undefined “since cases of inability could take various forms not neatly fitting into definition … The debates surrounding the Twenty-fifth Amendment indicate that are intended to cover all cases in which some condition or circumstance prevents the President from discharging his powers and duties …”:112A survey of scholarship on the amendment found

Acting secretaries can participate in issuing the declaration.:117-8:13

Article II, Section 1, Clause 6 of the Constitution reads:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President …

Can A President Declare Himself Disabled Under The 25th Amendment

Section 3 of the Amendment enables a president to declare himself temporarily disabled by sending a written declaration to the president pro tempore of the Senate and the speaker of the House stating that he is unable to discharge the powers and duties of his office.

Once the President disputes the original declaration, a clock starts ticking. If within four days of the Presidents objection the Vice President and the department secretaries again declare the President disabled to the Speaker and the President Pro Tem, the decision of disability falls to the Congress.

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According To The Constitution Presidential Disability

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    Impairments The Proposal Is Meant To Address

    The 25th Amendment Makes Presidential Disability a ...

    As already mentioned, Raskins bill would not be enacted by this Congress. If it passes in a future Congress and avoids a veto, moreover, it would face constitutional challenges because of the role it gives Congress in selecting and directing the commission.

    Nevertheless, it is worth considering the problems that Raskin is addressing here: First, the Cabinet is naturally reluctant to move against its boss. Second, even if a Cabinet were inclined to declare a president unable, it might be unqualified to make a medical judgment.

    Section 4s authors knew that the Cabinet would tend to be loyal to the presidentthat was one of the reasons they gave the Cabinet its role. Section 4 was meant to allow presidential power to pass swiftly and certainly when the president is completely incapacitatedsuch as when the president is in a coma.

    It does not require a medical degree to conclude that a comatose president is unable to discharge his powers and duties. But in less severe cases, when the president is well enough to declare himself able, Section 4s authors wanted to protect the presidents position. Putting the vice president and Cabinet in charge was one way that Section 4 raises the bar high.

    This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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    Understanding Presidential Disability And The 25th Amendment Under The Constitution

    President Donald J. Trumps COVID-19 diagnosis has sparked a flood of news stories about the 25th Amendment and its possible role if the President were unable to perform his constitutional duties.

    To be sure, that scenario may never befall the president, his Cabinet, the vice president and Congress, the four main actors in Section 3 and 4 of the 25th Amendment. But the 25th Amendment is a topic that the National Constitution Center has discussed in broader debates for the past five years. Here is a recap of that coverage, along with links to related content.

    Overview

    The 25th Amendment is a critical part of the Constitution. It covers the procedure that governs questions of presidential succession and disability. It was passed by Congress in July 1965 after considerable public debate and consideration in the House and Senate. It was finally ratified by the states in February 1967.

    Link:Read The Full Text On Our Interactive Constitution

    The Constitution as first written and ratified did not deal clearly with who succeeds the president when the office becomes vacant, or who acts as president when the chief executive is unable to perform the job for various reasons.

    The Sections

    Section 4 also allows the president to protest such a decision, and for two-thirds of Congress to decide in the end if the president is unable to serve due to a condition perceived by the vice president, and either the Cabinet or a body approved by Congress.

    Analysis

    Resources

    Section : Vice Presidential Vacancy

    Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

    Section 2 provides a mechanism for filling a vacancy in the vice presidency. Before the Twenty-fifth Amendment a vice presidential vacancy continued until a new vice president took office at the start of the next presidential term the vice presidency had become vacant several times due to death, resignation, or succession to the presidency, and these vacancies had often lasted several years.

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    How Unraveled Does Trump Have To Be Presidential Disability And The 25th Amendment

    Vanity Fair recently reported that White House sources believe the president is unraveling. As politicos across a widening swath of the ideological spectrum grow concerned with the presidents conduct, temperament and basic competence, references to the 25th Amendment have proliferated. It even showed up in the Vanity Fair piece: Former Trump adviser Steve Bannon told Trump that the biggest threat to his presidency wasnt impeachment but the 25th Amendment. Trump reportedly replied, Whats that?

    Its a good question.

    What makes the 25th Amendment of interest to Bannonand a matter about which Trump should educate himselfis the amendments remedy for presidential disability, especially Section 4, which creates a mechanism for forcibly removing a president who is unable to discharge the powers and duties of his office but wont admit it.

    Most histories of the 25th Amendment begin in the moments after President John F. Kennedys assassination in 1963, but concerns about presidential incapacity were evident more than a century before the shooting in Dallas.

    President William Henry Harrisons most notable legacy is his unfortunate death 41 days after taking the oath of office. His death precipitated the first crisis of presidential succession and disability. The constitutional provision then in effect left doubt about how and in what capacity the vice president took over for a dead president. Article 2, Section 1, Clause 6 said:

    Legislative Proposals

    Creating A Body To Take Over The Cabinets Role

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    So how does Raskins proposed commission fit into this process? When Section 4 gives the Cabinet its role , it says that Congress can enact a law to designate some other body to take over the Cabinets role in the Section 4 process.

    The Raskin bill is an attempt to do just that. Raskins other body would be a 17-member commission, appointed by a bipartisan process. Eight members would be doctors appointed by the speaker, the House minority leader, and the Senate majority and minority leaders, each of whom would appoint one psychiatrist and one other physician. Eight other members, appointed the same way, would be former high-ranking executive branch officials from each party.

    These 16 members would jointly select a 17th member to serve as chair. Raskins bill also would empower Congress to request that the commission examine the president and report on whether he is unable.

    The commission would have no power by itself to sideline the president. Section 4 would still require the vice president to sign on to any Section 4 action. Moreover, if the president declared himself able, Section 4 would still restore his powers unless not just the commission, but also the vice president and congressional supermajorities disagreed with the president.

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    Presidential Disability: A Quick Summary

    Eugene Volokh|10.3.2020 2:30 PM

    Whenever the President is ill, people understandably wonder how our system decides when the Vice-President needs to take over. Article II of the Constitution contemplated this, but without giving much by way of details:

    In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

    But the Twenty-Fifth Amendment provides a more specific rule, not by defining “inability” , but by indicating which institutions make that decision.

    First , the President can officially announce his inability , and then later announce that he’s back:

    Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

    Second , the Vice-President plus a majority of the Cabinet can officially announce such inability on the President’s part.

    How Long Does It Take For Congress To Declare A President Disabled

    Once the President disputes the original declaration, a clock starts ticking. If within four days of the Presidents objection the Vice President and the department secretaries again declare the President disabled to the Speaker and the President Pro Tem, the decision of disability falls to the Congress.

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    Constitutional Topic: Presidential Disability

    The Constitutional Topics pages at the USConstitution.net site are presentedto delve deeper into topics than can be provided on the Glossary Page or in the FAQpages. This Topic Page concerns Presidential Disability. PresidentialDisability is mentioned in the 25th Amendment.The Topic Page for the Presidential Line ofSuccession is also of interest.

    Air Force One. 24. The West Wing. What do all ofthese Hollywood creations have in common? They are or were all hugely popularin their time, to be sure. But more to the point of this site, they eachcontained in their story lines the invocation of an interesting and thoroughlymodern part of our Constitution, the 25thAmendment.

    History

    The 25th Amendment concerns presidential disability, or what to do with thepresidency if the President cannot perform the duties of the president. It isan issue that the Framers only gave the most cursory of thought to, relativelyspeaking. They were concerned about continuity of power, and provided for aVice President to replace the President, should anything ever happen. As timewent on, Vice Presidents did eventually replace Presidents as they died inoffice. For reference, a list of Presidents who died in office follows:

    The 25th Amendment was the answer to that question – the United States couldnot afford to have any doubts about who was at the helm. The 25thensures that the entire nation and the entire world is clear who the leader iseven in a time of uncertainty.

    What does the 25th say?

    Presidential Disability And The 25th Amendment

    Presidential Succession and Disability Presidential ...

    BySteven Aftergood November 5, 2018

    Under the 25th amendment to the Constitution, a U.S. President could be declared disabled and removed from office against his will by the Vice President acting together with a majority of the Cabinet.

    A new report from the Congressional Research Service details the background and provisions of the amendment.

    Proponents of the 25th amendment insisted that it was not intended to facilitate the removal of an unpopular or failed President, and that safeguards were in place to prevent abuse.

    While Presidents have voluntarily and temporarily declared themselves disabled on three occasions in 1985, 2002 and 2007 the provisions for involuntary removal from office have never been implemented. See Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress, November 5, 2018.

    Other new and updated reports from the Congressional Research Service include the following.

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    A Presidential Disability Commission Under The 25th Amendment

    In the aftermath of President Trumps recent hospitalization, a bill that would create a commission to examine presidential fitness under the 25th Amendment was proposed in the U.S. House. Michigan State University law professor Brian C. Kalt explains how the proposal would work and how it could increase the incentive for a U.S. president to conceal any impairments.

    House Speaker Rep. Nancy Pelosi and Rep. Jamie Raskin introduced a bill on Oct. 9 to establish a commission on presidential capacity. This legislation has no chance of passing in the current session, but combined with President Trumps recent hospitalization, Pelosis and Raskins announcement focused attention on an obscure part of Section 4 of the 25th Amendment that the public would do well to understand.

    The proposed legislation would tweak the procedure within Section 4 for declaring the U.S. president unable to discharge the duties of the office, but the procedure would still require many other steps weighted in favor of the president, and might even increase incentives for keeping an impairment secret.

    Section 4 of the amendment, ratified in 1967 and which never has been invoked, provides that the vice president and Cabinet can declare the president unable to discharge the powers and duties of his office, at which point the vice president becomes acting president.

    Sections 1 And : Richard Nixon Gerald Ford Nelson Rockefeller

    On October 10, 1973, Vice President Spiro Agnew resigned two days later President Richard Nixon nominated Representative Gerald Ford to replace Agnew as new vice president pursuant to Section 2. Ford was confirmed by the Senate and the House on November 27 and December 6 respectively, and sworn in December 6.

    On August 9, 1974 Nixon resigned and Ford became president under Section 1 Ford is the only president to have been elected neither president nor vice president.The office of vice president was thus again vacant, and on August 20 President Ford nominated former New York governor Nelson Rockefeller.:167â169 Rockefeller was confirmed by the Senate and the House on December 10 and 19 respectively, and sworn in December 19.:186â187

    On December 22, 1978, President Jimmy Carter considered invoking Section 3 in advance of hemorrhoid surgery. Since then, presidents Ronald Reagan, George H. W. Bush, Bill Clinton, and Barack Obama also considered invoking Section 3 at various times without doing so.

    1985: George H. W. Bush

    2002: Dick Cheney

    2007: Dick Cheney

    On July 21, 2007, Bush again invoked Section 3 before another colonoscopy. Cheney was acting president from 7:16 a.m. until 9:21 a.m. During that time, Vice President Cheney remained at home. This 2007 invocation and the 2002 invocation received relatively little attention in the press overall.

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