View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Saint Louis University School of Law Research: Scholarship Commons Saint Louis University School of Law Scholarship Commons All Faculty Scholarship 2018 Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4 Joel K. Goldstein Saint Louis University School of Law Follow this and additional works at: https://scholarship.law.slu.edu/faculty Part of the Constitutional Law Commons, and the President/Executive Department Commons Recommended Citation Goldstein, Joel K., Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4. Journal of Constitutional Law, vol. 21, no.1, 2018. This Article is brought to you for free and open access by Scholarship Commons. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of Scholarship Commons. For more information, please contact [email protected], [email protected]. TALKING TRUMP AND THE TWENTY-FIFTH AMENDMENT: CORRECTING THE RECORD ON SECTION 4 Joel K. Goldstein* ABSTRACT The first year of the presidency of Donald J. Trump brought attention to Section 4 of the Twenty-fifth Amendment, the constitutional provision that allows the Vice President and a Cabinet majority to transfer presidential powers and duties from a President who is “unable to discharge the powers and duties” of his office. Although the ensuing media discussion included many thoughtful contributions, it also produced many mistaken assertions by scholars, journalists and other commentators regarding the importance, scope, operation, and effect of Section 4. These mistakes are troubling because they may produce enduring misunderstanding regarding a provision designed to handle some of the most challenging, traumatic and contentious contingencies that might arise involving an incapacitated President and the transfer of presidential powers and duties to the Vice President. The errors also might provide material for political actors and their supporters to cite and use opportunistically to frustrate the proper use of Section 4. This Article exposes and corrects some of the mistaken assertions that have recently appeared in media discussions. It explores a range of textual, originalist, structural, pragmatic, and other constitutional arguments to shed light on significant, but sometimes misunderstood, questions regarding the importance, scope, operation, and effect of Section 4. TABLE OF CONTENTS INTRODUCTION ......................................................................................... 74 I. MEDIA DISCUSSIONS OF DECLARING PRESIDENT TRUMP DISABLED ......................................................................................... 79 II. SETTING THE RECORD STRAIGHT ...................................................... 87 A. The Central Role of the Presidential Inability Provisions ........................ 90 B. Section 4 and Mental Incapacity ........................................................ 98 C. The Scope of Section 4 ................................................................... 104 D. Who Decides? .............................................................................. 118 E. The Consequence of Section 4 .......................................................... 121 * Vincent C. Immel Professor of Law, Saint Louis University School of Law. I am grateful for extraordinarily helpful comments from Eric Berger, Roy E. Brownell, II, Monica Eppinger, John D. Feerick, Robert Gilbert, John Griesbach, John Rogan, Greg Willard, and Mike Wolff. I benefitted from the opportunity to discuss some of my ideas regarding the Twenty-fifth Amendment with participants in the Second Fordham University School of Law Clinic on Presidential Succession during 2016 and 2017, with participants in the Yale Law School Rule of Law Clinic in November 2017, at a Symposium on “Continuity in the Presidency: Gaps and Solutions” at Fordham Law School in September 2017, and at a faculty workshop at Saint Louis University School of Law in April 2018. I am responsible for any judgments and mistakes. 73 74 JOURNAL OF CONSTITUTIONAL LAW [Vol. 21:1 F. Can the President Reclaim Powers Immediately Upon His Declaration of Fitness? .................................................................................. 125 III. CONCLUSION .................................................................................... 149 INTRODUCTION It was anticipated that 2017 would bring attention to the Twenty-fifth Amendment to the Constitution. That provision, which addresses presidential succession and inability and filling vice-presidential vacancies, was ratified on February 10, 1967, which made 2017 its fiftieth anniversary. Golden jubilees invite retrospection. They present occasions to look back, to reflect on, sometimes to celebrate, past events, even those that generally receive little recognition, like obscure provisions of America’s Constitution. The Twenty-fifth’s fiftieth seemed likely to present an opportunity for a multi-purpose reflection—part nostalgia, part review of the legislative process and the people that produced the Amendment, part examination of the strengths and weaknesses of America’s provisions regarding presidential succession and inability, and part public education regarding the Amendment’s four sections and the constructive role three of them had already played in ensuring presidential continuity.1 Life has a way of upsetting plans, and it did in this instance. Political events transformed the anniversary. The Twenty-fifth Amendment received much, much greater media attention than anyone could have imagined, but most of the discussion occurred for unanticipated reasons and with an unforeseen focus. Instead of addressing the three sections that had handled succession or inability contingencies or reform ideas, public conversation targeted the Amendment’s Section 4, which provides for involuntarily separating a President from the powers and duties of his office.2 Section 4 1 See, e.g., Joel K. Goldstein, Celebrating the 50th of the 25th Amendment!, HUFFINGTON POST (Feb. 10, 2017, 3:31 PM), https://www.huffingtonpost.com/entry/celebrating-the-50th-of-the-25th- amendment_us_589e1bb7e4b080bf74f03bcc. 2 Section 4 reads as follows: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives 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 either the principal officers of the executive department or of such other body Oct. 2018 TALKING TRUMP AND THE TWENTY-FIFTH AMENDMENT 75 will be discussed more specifically below but, in essence, it provides a means whereby the Vice President and a majority of the Cabinet (unless Congress replaces that group with a different body) can transfer presidential powers and duties (but not the presidency) to the Vice President upon finding that the President is unable to discharge them. Section 4 also contains provisions whereby the President can seek to reclaim his powers upon asserting that he is not disabled and his claim can be considered, initially by the Vice President and Cabinet, and, if they believe he remains disabled, by Congress, before he resumes power. What produced the recent preoccupation with Section 4 was neither an interest in exploring the Amendment’s past nor an effort to improve it for the future, but a belief that present circumstances dictated that the unused provision should now be put to use. This unforeseen development was due, of course, to recurring questions regarding whether President Donald J. Trump was “unable to discharge the powers and duties of his office,” the standard Section 4 sets for its use. Those concerns were aired even before his election and escalated during the first year of his presidency as scholars, legislators, and journalists used information age platforms to expound on whether Section 4 applied and, if so, whether it should be invoked. The unanticipated focus came at a cost. The preoccupation with the Amendment’s one unused portion distracted from recalling the contributions the other three parts have made and from considering remaining gaps in America’s provisions for ensuring presidential and governmental continuity. Section 1 had formalized the long-standing practice that the Vice President became President (not simply acting President) for the remainder of the term upon the death of the President and had extended that treatment to presidential resignations and removals following impeachment, situations involving permanent vacancies where the same logic applied.3 Section 2 as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in