One of the most dangerous scenarios in American government is the possibility of two people both claiming to be president at the same time. Sections 3 and 4 of the Twenty-Fifth Amendment are meant to avoid exactly that—to make crystal clear who at any moment is in charge.
Unfortunately, a common misreading of a poorly drafted part of Section 4 could cause a full-blown constitutional meltdown. This week’s events have magnified that risk. After rioters waving Trump flags stormed the Capitol on Wednesday, multiple reports have indicated that Cabinet members have discussed invoking Section 4 of the amendment, which would strip President Donald Trump of his powers provisionally and make Vice President Mike Pence the acting president.
The current chaos in the capital is based in part on President Trump’s habit of latching on to alternate interpretations of constitutional texts when they suit him. Unfortunately, Section 4 offers a doozy. It says that the vice president and a majority of the Cabinet can transfer power to the vice president by declaring the president “unable to discharge the powers and duties of his office.” But Section 4 also allows the president to retake power when he has recovered: “When the President transmits … 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 [the Cabinet] transmit within four days … their written declaration that the President is unable to discharge the powers and duties of his office.” If the vice president and the Cabinet issue that final declaration, the case goes to Congress for resolution.
Crucially, the president does not retake power immediately upon declaring himself able. Rather, the vice president remains acting president during the four-day waiting period. (Whether the vice president and the Cabinet can voluntarily transfer power back to the president in less than four days is less clear.) In addition, if the vice president and the Cabinet re-declare the president’s inability, the vice president remains in power as Congress deliberates to settle the dispute.
The problem is that the text was not drafted with particular clarity. Many people—not just journalists writing this week, but also some lawyers who have commented casually about this section over the years—have misinterpreted it, and said that the president retakes power immediately upon his declaration that he is able.
The hazard here should be clear. Imagine that an unhinged president is threatening to unleash a catastrophe. The vice president and the Cabinet react by invoking Section 4. The president—unhinged, but still lucid—responds and asserts, wrongly, that he has taken his power back. We now have two people claiming to be in charge of the White House, the executive branch, and the military. More problematically, the president could attempt to fire the Cabinet, to prevent it from re-declaring his inability and sending the case to Congress. It is not hard to imagine the havoc that even a few hours of this tug-of-war could wreak.
President Trump would have much stronger incentives—and much stronger proclivities—to misread this constitutional language than did the journalists and lawyers who got it wrong. A besieged president would latch on to whatever legal arguments he could to protect his power. And here, the wrong reading is superficially plausible. There is no way that the president in such a state would sit down to compare the thoughtful legal arguments on both sides, choose the better one, sigh, and hand over power. This is why the general public must understand the proper reading in advance.
The proper interpretation begins with the text. It says the president “shall resume” his powers “unless” the vice president and the Cabinet disagree “within four days.” Here, “unless” means that the action is pending, not that it is reversible. If I write to you, “Send me a check for $100, and I will mail you a widget, unless your check bounces within four days,” you should not expect me to mail the widget until day four.
The text offers another clue. Section 4 mentions the vice president’s status as acting president in two places. First, at its outset, the vice president “immediately” takes power as acting president after the initial declaration of the president’s inability. Second, at its end, Section 4 says that if the president loses the congressional vote, the vice president “shall continue” as acting president. That’s it. Section 4 does not say anything about the vice president taking power back from the president when the second declaration sends the case to Congress—the vice president, then, must never have lost power, because the president never took it back.
The correct reading also makes better sense structurally. Under the wrong reading, power would ping-pong during a dispute’s pendency: from the president to the vice president, back to the president, then back to the vice president. The correct reading has power transfer just once—something that the amendment’s drafters indicated was important to them when they wordsmithed the text in the 1960s.
The wrong reading is structurally unsound for another reason already mentioned: A president who retook power immediately would be able to fire the Cabinet. This would prevent the dispute from being sent to Congress. But Section 4’s drafters wanted to ensure that disputes were sent to Congress. They did not want a president—least of all one of questionable stability—to not only prevent his incapacity from being addressed but also decimate the government’s senior leadership.
For those who disagree, and find the text and structure ambiguous, the legislative history should resolve all doubts. Put simply, Section 4’s drafters meant for the vice president to be in charge during the waiting period. They wrote this understanding into the record, clearly and repeatedly.
This exchange that took place on the Senate floor between Republican Senator Gordon Allott of Colorado and Democratic Senator Birch Bayh of Indiana is one example:
Allott: The president would then send to Congress his written declaration. Who would be president during the seven days? [The waiting period was later changed from seven days to four.]
Bayh: The vice president, the acting president … Such a provision would cut down the number of times the power of the presidency would change. We desire to keep it to a minimum.
Allott: To get to the question in another way, so the issue will be clear, if a vice president had assumed the duties of acting president, and the elected president then decided that he wished to state that there is no inability any longer, it would be seven days before he could possibly resume the office of president.
Bayh: That is correct.
Allott: There is no question about that. That is the intent.
Bayh: That is the intent.
Several other such discussions took place in both chambers. Together, they make perfectly obvious what Section 4’s drafters thought they were saying.
Another part of the legislative history reinforces this understanding. Later in the process, Republican Representative Arch Moore of West Virginia objected to the fact that the vice president was in charge during the waiting period. Moore was not suggesting a different interpretation of the language; he was reading it correctly but finding it not to his liking. He proposed changing Section 4 so that the president would be in charge during the waiting period. Moore’s proposal was debated and rejected—in part because of the potential problem mentioned above: A president who regained power immediately could fire his Cabinet and prevent the dispute from being sent to Congress. The House not only knew that the vice president would be in charge, but actively voted to keep it that way.
Unlike many constitutional-law arguments, this one has only one side. Danger looms anyway.