How TV Taught America Bad Constitutional Law

a mother and daughter watch television, surrounded by the text of the Constitution
Klara Auerbach

Among the handful of constitutional provisions that have never been used, Section 4 of the Twenty-Fifth Amendment surely has the highest profile. Ratified in 1967, Section 4 provides a way to strip the president of his powers if he or she is “unable to discharge the powers and duties of his office.” Its dramatic potential is obvious; presidents in movies, books, and TV shows face Section 4 all the time. But in real life, Section 4 has only gotten significant attention since President Donald Trump took office in 2017.

President Trump has faced a steady chorus of critics who believe he is unfit for office. Michael Wolff’s Fire and Fury, the anonymous New York Times op-ed writer, and former FBI director Andrew McCabe have all reported on internal discussions about invoking Section 4. But the loudest critics are on social media. Every day, the #25thAmendment hashtag (never #Section4, for some reason) abounds as posters cite Trump’s most recent bizarre, unnerving, or erroneous tweet and plead for his removal.

These social-media entreaties typically depict Section 4 as a constitutional shiv—invoke it and the president will be dispatched with swift certainty. How is it, the posts ask, that the Twenty-Fifth Amendment has not been deployed against Trump? Isn’t this just what the amendment was designed for? The questions are meant to be rhetorical; their point is that the powers that be are craven or feckless.

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But these rhetorical questions have answers. Section 4 has not been used against President Trump because—so far, at least—his conduct is not what Section 4 was designed to cover. More importantly, using Section 4 against Trump today likely would not remove him, and it certainly would not do it with swift certainty. Put simply, public understanding of Section 4 is deficient.

Hollywood bears some of the responsibility for this. Because Section 4 has never been used in real life, most people’s understanding of it has been shaped by fictional depictions they have seen on TV shows like 24 and Designated Survivor—depictions with deep, deep flaws. To understand impeachment, you’ve got Richard Nixon and Bill Clinton. To understand Section 4, you’ve got Kiefer Sutherland.

Before undoing the damage that TV has wrought, it is worth reviewing what Section 4 is meant to do, and how it is designed to achieve those ends.

Section 3 of the Twenty-Fifth Amendment allows the president to declare himself “unable,” transferring power to the vice president. As soon as the president declares himself able again, he takes power back instantly. Section 3 has been invoked only three times, all by presidents about to go under general anesthesia.

Section 4 is for when an incapacitated president cannot or will not invoke Section 3. It empowers the vice president and a majority of the Cabinet to declare the president unable, making the vice president the acting president. The president can attempt to retake power by declaring that “no inability exists,” but he must wait for four days after his declaration, during which the vice president and Cabinet can reassert that he is unable. If they do, the vice president stays in charge and the case moves to Congress. If two-thirds majorities in the House and Senate agree within 21 days that the president is unable, the vice president remains as acting president. Otherwise, the president retakes power.

The animating principle of Sections 3 and 4 is continuity. This goal is limited: preventing the helm from being unmanned when a president is completely incapacitated. The point is not to oust presidents who are “unable” in the sense of being lazy, incompetent, or screwy. If the president cannot contest the action (because, say, he is in a coma), Section 4 is designed to transfer power instantly and uncontroversially. But if the president can respond—and whatever else you can say about Trump’s actions and deportment, he surely would respond—Section 4 is designed to protect the president by making it very hard to displace him.

Section 4 does this by putting several thumbs on the president’s side of the scale. The first is the choice of the vice president and Cabinet as gatekeepers. As members of the president’s team, they typically will be cautious about moving against him. Section 4’s framers saw this as a feature, not a bug.

Second, because a contested case requires two-thirds majorities in the House and Senate to keep the president out, Section 4 cannot be used as an end run around the impeachment process (which requires two-thirds in the Senate for removal, but only a simple majority on the House side). If there are not enough votes to impeach and remove a misbehaving president, a Section 4 congressional vote will fall even further short—unless the president truly is incapacitated.

Third, while removal via the impeachment process is permanent, displacement via Section 4 is not. If the president loses a Section 4 vote in Congress and the vice president remains as acting president, the president can try again—and again, and again—to retake power.

Taken together, these built-in limits mean that in all but the most extreme cases, Section 4 will not work against a president who can respond. This is certainly not the vision of the Twenty-Fifth Amendment that one finds on TV, though, and consequently not how much of the public understands the amendment today.

To be sure, Hollywood has gotten some things right. Some TV portrayals have been mostly unproblematic. Presidents John Keeler (24, 2003), Elias Martinez (The Event, 2011), Fitz Grant (Scandal, 2012), and Frank Underwood (House of Cards, 2016) all had Section 4 invoked on them when they were critically wounded. Though these shows got a few minor details wrong, they all depicted Section 4’s core function being executed properly.

But when fictional Section 4 cases are contested, TV misses the mark badly. In addition to bungling crucial details, shows have misrepresented the section’s fundamental purpose and structure. The first offender was 24. In Season 2 (2000), President David Palmer faced a Cabinet mutiny over his unwillingness to order a military strike. Something similar happened in Season 6 (2007) to his brother, President Wayne Palmer. Both presidents eloquently protested that they were in complete possession of their faculties and argued that Section 4 is not for policy disagreements. But in both cases, the president only stayed in power because of an unrelated dramatic intervention, not because his (correct) vision of Section 4 was vindicated.

More recently, the same thing happened on Homeland (2018). The vice president and the Cabinet suspended the unpopular President Elizabeth Keane, calling her “unfit” (rather than “unable,” the actual standard). She protested that Section 4 was inapt, given that she was “clearly able to discharge the duties of her office.” But like the Presidents Palmer, her accurate description of Section 4 fell on deaf ears. She won the battle only later, after the efforts against her were revealed to be a Russian plot.

Beginning the same week in April 2018 in which the Homeland episode aired, Designated Survivor featured an arc with an even more misleading version of Section 4. Regrettably, when President Tom Kirkman’s vice president and Cabinet contemplated removing him under Section 4, the removal was depicted as permanent. Worse yet, no mention was made of Kirkman’s ability to take the case to Congress.

Earlier in 2018, Madame Secretary had made a similar mistake. President Conrad Dalton, acting erratically because of an undiagnosed brain tumor, ordered a military strike. The underlying issue—an able-but-impaired president who was acting dangerously—was interesting and nuanced, and the show did a good job with it. But this story line, too,  involved the idea that invoking Section 4 would remove Dalton from office permanently.

At precisely the moment when Twenty-Fifth Amendment talk about President Trump had caught the general public’s attention, then, these three shows led it astray. Millions of viewer-citizens were taught that Section 4 can be used against a lucid, resistant president to instantly and permanently remove him or her from office.

Of those millions of people, many had a vastly lower opinion of President Trump than they did of Presidents Palmer, Palmer, Keane, Kirkman, and Dalton. It is no surprise that such people would look at Trump, then at their TVs, then back at Trump, and question why Vice President Pence and the Cabinet did not invoke Section 4. All of their indignant questions reinforced each other (in the finest traditions of social media).

But that indignation was misplaced. Section 4 has not been invoked because it wasn’t designed to be used for the sort of trouble the Trump presidency has created so far. I wrote a whole book on Section 4 in 2019 because I thought it would help people understand that. I should have made a TV show instead.