Unfortunately, the only place you'll see the 25th Amendment do what it's supposed to is on television.
For USA Network's Political Animals, politics is family crisis writ large: Its former First Family, the Hammonds, manages to go through suicide attempts, drug overdoses, alcoholism, marital infidelity, intrafamily press leaks, and a foiled elopement in only six episodes. Ciaran Hinds plays Bud Hammond, the adulterous former president, as Huckleberry Hound; Sigourney Weaver plays his ex-wife Elaine, former presidential candidate turned Secretary of State, as the wicked queen from Snow White.
Not content with family antics, though, the writers ended the miniseries with a constitutional crisis, and they put their fingers on one of our system's most vulnerable points -- the Twenty-Fifth Amendment, which tries to bring rationality to our system of presidential succession. The Amendment is largely a failure. Remarkably, though, Political Animals manages to depict one of the ways it actually wouldn't go wrong.
The Twenty-Fifth Amendment was written during the 1960s. In anxious lawyers' language, it tried to make sure that the office of president would never be empty long enough to tempt to Russians to lob missiles over the pole. But as John Calvin Bachelor demonstrated in his 1996 novel, Father's Day, it also makes possible a new crisis that could not have occurred before -- two dueling presidents -- which could easily bring the country to the edge of Civil War.
Under Section Four, if officials around the president think he is unable to function, they can in essence suspend him. The vice president must agree, and so must either a majority of (1) the Cabinet or (2) "such other body as Congress may by law provide." (Congress has not yet exercised this option.) If they do agree, they transmit a "written declaration" to the speaker and president pro tempore of the Senate. Once the declaration is transmitted, the vice president "shall immediately assume the powers and duties of the office as Acting President." (This is a new office, never before mentioned in the Constitution.)
When the president is ready to return to his functions, he transmits to the congressional leaders his own "written declaration that no disability exists." He goes back to work -- unless, that is, the vice president and a majority of the Cabinet disagree. In that case, they have four days to submit a counter-declaration that he is still unable to serve. If they serve such a declaration, the president will remain suspended. Congress has three weeks to confirm the suspension; otherwise the president returns to the "powers and duties" of the office.
Okay, here come the spoilers: In the last episode of Political Animals, Elaine tells President Paul Garcetti (Adrian Pasdar) that she is resigning as Secretary of State to run against him for the Democratic nomination. Garcetti refuses her resignation and asks her to become the vice presidential nominee in his re-election campaign, displacing Vice President Fred Collier (Dylan Baker). Collier, a former CIA director, is an unscrupulous lout who has blackmailed gay lawmakers to win their votes for the Administration's program. Elaine is pondering the offer when she learns that Air Force One, with Garcetti on board, has crashed into the Mediterranean.
Here's the crisis: Collier at once summons the chief justice to the Oval Office to administer the oath of office that will make him president. Elaine heads Collier off; she forces him instead to invoke § 4 of the Twenty-Fifth Amendment, permitting him and the Cabinet to notify the leaders of Congress that the president "is unable to discharge the powers and duties of his office," and that Collier will now take over as Acting President.
Leave aside the miserable politics of a vice-president elbowing his way into office prematurely; there's good reason this scenario has never actually happened. Under Section 3 of the Amendment, a president can temporarily transfer authority to the vice president. That has happened three times, each time while the president was sedated for a colonoscopy. But Section 4, the hostile-takeover provision, has languished.
When Ronald Reagan was shot in March 1981, Vice President George H.W. Bush did not invoke Section 4, although the President was sedated and a power struggle had broken out among Cabinet members. Early in Reagan's second term, as reported by journalists Jane Mayer and Doyle McManus, the president became deeply withdrawn and depressed -- symptoms that were probably early warnings of the Alzheimer's disease that disabled him after he left office. White House Chief of Staff James Baker actually discussed invoking the Amendment until doctors could examine the president. Nothing came of it.
Furthermore, the episode portrays the chief justice of the United States as meekly scurrying to the White House to administer the oath when anyone with a television knows there is no vacancy in office. Collier is in effect asking the chief to assist him in a coup d'état. No chief justice would let a vice president use the Court's prestige that way.
If, as the framers of the Amendment worried, the president ever goes insane, it's unlikely that those around him will blow the whistle. If ever a president is missing after a plane crash, the chief justice will probably be at home watching TV like the rest of us.
I doubt Chief Justice Roberts watched Political Animals. If so, too bad. It was silly but pretty good.
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