What Is the 25th Amendment?

On January 6, the United States Capitol was breached for the first time since the War of 1812. Only instead of a foreign invasion, these insurgents were supporters of the President of the United States. They had just attended a “Stop the Steal” rally, where the President exhorted them to “walk to the Capitol.

The entire Congress, their staff members, and others were rushed into safe spaces within the building while the intruders rampaged, rummaged, and destroyed property. They had to stay in hiding for six hours before Congressional business could resume.

Five individuals died as a result of the melee, including a Capitol police officer who was bashed in the head with a fire extinguisher.

Since his 2020 election loss, the President has been visibly obsessed with trying to get the results overturned. And now, a majority of those polled by Politico.com believe that he bears some responsibility for the violent scenes they witnessed at the Capitol.

On Thursday, Representative Adam Kinzinger became the first Republican currently serving in Congress to call for the Cabinet to invoke the 25th Amendment. On Friday, GOP Senator Lisa Murkowski called upon the President to resign. Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer tried to call Vice President Mike Pence to ask him about invoking the 25th Amendment.

“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,” Schumer said.

History of the 25th Amendment

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The 25th Amendment builds on and clarifies the rules of succession laid out in Article 6 of the Constitution, which — that in the event of a President’s death, the Vice President assumes his office. But it doesn’t answer the question of how to fill the vacancy that leaves behind, or what to do if a President falls too ill to perform his duties or is otherwise incapacitated.

The founding fathers did not anticipate a situation like the one that occurred in 1919, when President Wilson suffered a debilitating stroke. In that instance, First Lady Edith Wilson secretly assumed his presidential duties (leading some historians to name her our first female president).

After the assassination of President Kennedy, when lawmakers realized that the Constitution was vague on how the government should handle presidential death, resignation, removal, or disability. The 25th Amendment, which was ratified in 1967, addresses that oversight.

Invoking the 25th Amendment

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The 25th Amendment consists of four sections: (1) Presidential succession, (2) Vice Presidential vacancy, (3) Presidential declaration (which gives the President a means to temporarily transfer power to the Vice President such as in the case of a medical procedure, and (4) Declaration by the Vice President and Principal Officers.

Since ratification, the amendment has been invoked six times, beginning in the Watergate era. In 1973, Vice President Spiro Agnew resigned and was replaced by Gerald Ford. One year later, President Nixon resigned, Ford assumed the presidency and Nelson Rockefeller filled the vacant office of Vice President.

Section 3 was first invoked when President Ronald Reagan underwent anaesthesia for a colonoscopy in 1985, then twice during the George W. Bush administration (also for colonoscopies).

Section 4 of the 25th Amendment

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When critics of President Trump talk about invoking the 25th Amendment, they are referring to Section 4, which allows the Vice President and members of the Cabinet or Congress to force a transfer of power if they determine together that the President is unable to discharge his duties. It’s the only section that has never been invoked.

Legal scholar Brian Kalt wrote an entire book on section 4 of the 25th Amendment. “25A is meant to transfer power swiftly when the president is completely incapacitated,” he explained in a tweet last year. “Think coma, serious stroke, severe dementia.”

“The 25th Amendment is designed not to work,” Kalt told Slate on Thursday. “It isn’t a way to get rid of the President. It really is supposed to be about when he’s incapacitated, not doing bad things. Impeachment is for bad things.”