The 25th Amendment Under Vice Presidential Control
The vice president's power to block any role for Congress and the case for reform
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President Trump’s public utterances in recent weeks, such as his threat to eliminate a “whole civilization” in Iran if the “crazy bastards” in Tehran don’t “open the F***in’ Strait,” have prompted discussion of the removal procedures under the 25th Amendment. It is unlikely that the discussion will progress to formal invocation of the amendment, which requires the concurrence of both the vice president and the Cabinet. But Congress may establish a special body to supplant the Cabinet’s role in this process, and House Democrats are proposing legislation to do so. The House bill would establish a 17-member commission to conduct a medical evaluation of the president, but by the terms of the 25th Amendment, removal and the vice president’s accession to acting president would still require the vice president to join a majority of this commission in issuing to Congress a “written declaration” that the president is unfit to serve.
There is no immediate prospect for passage of this measure. With Trump as the present focus of the proposal, Republicans will undoubtedly oppose it. But the current moment also invites a broader consideration of whether the current structure of the 25th Amendment can accomplish its objective of addressing a president’s—any president’s—mental incapacity.
Whatever the merits of this proposal, it underscores the issues raised by the amendment’s placement of the vice president in a controlling role. As Cass Sunstein has recently written, “[I]f the Vice President doesn’t want the 25th Amendment process to go anywhere, it won’t go anywhere. The only exception is if the President himself wants to invoke the 25th Amendment.”
The vice president’s grip on the 25th Amendment process is the key issue in the amendment’s design and operation. The problems it presents are rooted in the unusual features of this constitutional office, and the current controversy presents an occasion to consider reform that should be taken up at some point in the future—however long from now that may occur.
The Office of the Vice President
As a starting point, it is important to call to mind the unusual features of the office of vice president. A presidential nominee handpicks his or her vice-presidential candidate who assumes office without independent approval of the voters. The prevailing conclusion in political science is that the identity of the vice president does not much matter to the outcome of presidential elections: Voters generally base their choices upon their preference for president.
To the extent that the selected vice-presidential candidate is “vetted” for the position, it is only by operation of a private process put in place by the presidential candidate and the candidate’s campaign team. No government resources are made available for this vetting process. In fact, the government is barred from providing direct or indirect support to the screening.
The VP has only those policy or administrative responsibilities within the executive branch that have been assigned by the president. The president also determines the VP’s degree of influence, to include his or her level of access to information and decision-making processes. The president cannot fire the vice president but is also under no constitutional obligation to assign the second-in-command to any major roles or actively prepare him or her for the presidency in the event of death or disability.
There is only a general public expectation, and beyond that a governing norm, that the vice president is a close partner of the president who provides counsel in confidential terms but is also reliably and publicly loyal in the role. The loyalty is assumed; the counseling role and its significance within the administration are up to the president.
The vice president functions independently under the Constitution in only two respects. First, the VP is the president of the Senate and may as a governing expectation or norm operate independently of the president in that capacity. Second, the vice president possesses independent authority under the 25th Amendment to support or oppose—decisively in both cases—the removal of a president whose capacity has come into question.
In sum, the vice president—who serves by the sole choice of the president, who comes to office without independent electoral choice, whose role in the administration is entirely a matter of presidential discretion, and who serves under a core expectation of loyalty to the chief executive—plays a controlling role in the operation of the 25th Amendment. Congress can move the Cabinet out of its position under the amendment, replacing it with the special body, but the VP retains his or her central position in either case.
The Vice President’s Role and Distant Prospects for Reform
During House debate on the 25th Amendment in 1965, one of the amendment’s architects explained the controlling role of the VP as follows:
The Vice President, a man of the same political party, a man originally chosen by the President, a man familiar with the President’s health, a man who knows what great decisions of state are waiting to be made, and a man intended by the authors of the Constitution to be the President’s heir at death or upon disability, surely should participate in a decision involving the transfer of presidential powers.
And to the question of whether the VP might be moved by ambition to oust the president from his responsibilities, it was generally believed that he or she would predictably exercise this power with more “timidity” than aggressive self-interest, for fear of the political costs of a constitutional coup d’état.
The VP is not given just a role—the right to “participate in the decision”—but a veto in the 25th Amendment process. Congress’s role in the amendment is contingent on the VP’s willingness to provide for it. Assume that a president suffers a stroke or other condition, insists that he has recovered and can proceed to assume his duties in full, and, pursuant to the amendment, provides the Congress with a “declaration” to this effect. Should the vice president together with the Cabinet or special body issue to the Congress a declaration to the contrary, “Congress shall decide the issue” and may by two-thirds vote in both chambers reject the president’s bid to assume his or her duties. But this can happen only if the vice president agrees to commit the issue to congressional determination in the first place.
The 25th Amendment confers extraordinary power on the vice president to act without check in these circumstances of national emergency. It is another of the odd design features of a strange office in the constitutional system.
A reformed version of the amendment might retain the VP’s role but weaken his or her stranglehold on the removal process. It could provide, for example, that if the Cabinet or the special body established by Congress votes by a majority or supermajority that the president is incapable of continued service in the office, the vice president cannot prevent the determination from having its effect. By this vote, the vice president would assume the powers and duties of the presidency, and also by such a vote, Congress would be empowered to resolve an objection raised to the president by the transfer of powers to his or her vice president. The vice president could be given a vote with Cabinet members (or the special body) in either case, but not the decisive vote.
But until such time, if ever, that such reforms are considered, the vice president holds the whip hand under the 25th Amendment and is, on this very critical question of governance, the most powerful official in the federal system.
I thank Tia Sewell for her editorial assistance