Interpreting the 25th Amendment: The Meaning Of “Unable”

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I watched Newsy yesterday to witness the discussion regarding the 25th Amendment. It was interesting to see the discussion on both sides regarding how the Amendment should be used. Now, mind you, House Speaker Nancy Pelosi wanted to send Vice President Mike Pence a reminder that the 25th Amendment invocation has the approval of Congress. The House resolution wouldn’t move the Vice President to invoke the 25th Amendment, but it was a sign of solidarity for Pelosi and the Democrats. It was designed to show that there is good approval for it, that there are congressmen and congresswomen who want to see it enacted to get the incumbent President, Donald J. Trump, out of office. 

The resolution passed, though it was nothing more than a symbolic gesture. But a symbolic gesture is still a good one. The resolution for Mike Pence and his invocation of the 25th Amendment sends a message that the President is unstable and that something should be done to prevent a deranged leader from yielding military power while still in office. The fact that Trump still has a week in office is troubling. He has seven more days to commit more dangerous acts. The thought should unnerve every American and global citizen. 

But Republicans and Democrats differ on how they interpret the 25th Amendment. Which is right? 

We’ll take a look at their perspectives below. 

The 25th Amendment: What It Says

What does the 25th Amendment say? To save space, let’s look at the 25th Amendment, Section IV, which seems to be the paragraph in question: 

“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.”

Essentially, Section 4 of the 25th Amendment allows Vice President Mike Pence and those who lead in executive departments can write a letter to the House Speaker, telling Nancy Pelosi that the President is unfit to do his job…at which point, Mike Pence would assume the duties of the President of the United States (POTUS). Now, Section 4 says that “Congress may by law provide” other such bodies to issue this written statement. So with that said, though Pelosi didn’t do it, Congress could declare the House the body to provide the letter regarding the President. Congress could appoint the Senate to provide a written letter, or other bodies that are unnamed. Essentially, if the Congress wants the President gone, it can appoint whatever body it likes, by law, to issue a letter about the President’s disqualification — and by law, the President would have to go, regardless of how he or she feels about it. The resolution sent to Mike Pence was a documented way of encouraging the Vice President to follow the law. Since Mike Pence refused his opportunity to do the right thing because of his future political ambitions, at least there’s a documented way of showing that Pelosi followed the law. It can’t be said that she pressed forward with utter disregard for law. The President has already acted unlawfully. We don’t need or want more of the same. 

But, while the language of Section 4 gives Congress a great deal of power, the discussion with Congress doesn’t pertain to its power over appointing bodies to find the President unfit, but rather, with the meaning of the phrase “unable to discharge the powers and duties of his office.” What is meant by this phrase? 

Well, it depends on whom you ask. 

How Republicans Interpret Section 4 of the 25th Amendment

What do you think about when you read “unable to discharge the powers and duties” of the office of President? Republicans said last night in the resolution discussion that for them, “unable” is physical. They pointed back to the last time the 25th Amendment was enacted. At that time, it was used to give the Vice President control over the office of POTUS while the President himself underwent a colonoscopy. Presumably, Republicans would say that in cases of surgery where a President has to have anesthesia and be “under the knife,” he or she would be physically and medically incapacitated and thus, incapable of fulfilling his or her presidential duties. So for Republicans, medical and physical incapacitation are what meet the requirement of the 25th Amendment. 

Democrats think the 25th Amendment allows for a broader interpretation. 

How Democrats Interpret Section 4 of the 25th Amendment

Democrats, in contrast, see the idea of incapacity or inability as pertaining to not only health-related reasons (such as colonoscopy or a surgery of some sort, recovery from surgery included), but also mental reasons. “Fitness” is not just about body but also mind, and a person who is mentally unstable could also be deemed incapacitated. If a person is deranged, or a person isn’t thinking clearly, he or she could give up their power temporarily and resume it when they’re in a better thinking state. Wholeness includes mind as well as body. 

So with that said, take President-Elect Joe Biden, for example. Let’s say that he assumes office on January 20th, 2021. In 2022, let’s say that his wife dies, or a relative passes away due to a tragic event. President Biden becomes so overwhelmed with grief that he just isn’t mentally capable to resume his presidential duties and needs a year off to get himself together. He may feel so overcome with emotional and mental anguish that he may not know when he can resume his presidential duties. But he knows that he may be physically fit, but he isn’t mentally fit to continue his duties. 

In such a situation as the President is overcome with mental and emotional anguish, wouldn’t the 25th Amendment apply? Republicans only want the 25th Amendment to refer to physical/surgery/medical reasons, so emotional and mental anguish wouldn’t apply for them. Democrats, however, would disagree. 

Does the language of the 25th Amendment agree, one way or the other?

Does the language of the 25th Amendment agree one way or the other? In all honesty, the language of the 25th Amendment is broad. It merely says “unable to discharge the powers and duties of his office.” The inability is not specified. It doesn’t say the President can be tossed out if he is “physically or medically unable.” It doesn’t say the President can be relieved of his duties if he is “having a colonoscopy or surgery” of some kind. There are no specifics in the 25th Amendment, which says that the law was designed to be interpreted to fit a wide number of situations and circumstances. It wasn’t designed to be limited to a set number of conditions or circumstances. Republicans are likely interpreting the law pertaining to colonoscopies and surgeries because that’s how the law has been applied in presidencies past. Just because the law hasn’t been applied in a particular way doesn’t mean it can’t be applied in a new way today.

One thing that makes the law stand until now is its broad application and broad statement. The law doesn’t particularly apply to mental inability or incapacity, but it can. If it refers to simply being unfit, then it can apply to the mental and emotional as well as the physical. A President could be declared unfit if he or she has to care for a sick spouse who needs their attention, or for his or her parents who are well up in age and have no one to care for them. A President could have a grandchild to care for, to help his or her child with parenting duties, and invoke the 25th Amendment to be temporarily relieved of his or her duties. There are all sorts of circumstances and conditions for which the 25th Amendment applies. And the 25th Amendment has a broad scope and application. It isn’t as limited as Republicans believe it is. 

25th Amendment: Why Republicans and Democrats Disagree

Democrats want it to apply to the current incumbent President, Donald J. Trump, because he has proven his mental inability to lead the country. It started with his loss in the November 2020 presidential election. When the votes were counted, Trump could not accept the rejection the American voters dealt him at the ballot box. He couldn’t believe the people no longer wanted him to serve and denied him a second term. He thought the people loved him. When so many Republicans sided with Democrats and voted for his opponent, Joe Biden, he couldn’t handle it. His response has been nothing but that of a spoiled brat ever since. 

After President Trump was declared having lost the election, and Joe Biden the President-Elect, he started getting his lawyers together and fought the election in the courts. After some 60+ lawsuits, there was no case found of massive, wide-scale voter fraud. Even Trump’s own cabinet member at the time said that the 2020 election was “the most secure in American history.” And Trump has appointed a new Georgia federal prosecutor who agrees with Trump’s cabinet member. “Quite frankly, just watching television you would assume that you got election cases stacked from the floor to the ceiling. I am so happy to find out that’s not the case, but I didn’t know coming in,” Bobby Christine said in a recording.

But that hasn’t stopped Trump from claiming he won the election. And in a more recent event, we’ve heard a recording where Trump tried to pressure a Georgia state official (Raffensperger) to “find 11,780 votes,” telling him “there’s no harm in saying you recalculated.” Clearly, to affirm something that doesn’t fit reality shows that President Trump is unfit to lead. And even on January 6th, on the terrible day in which the Capitol was sieged by an angry “Stop The Steal” mob, President Trump continued to state that the election was stolen, that “dead people voted” and that “batches of ballots were rescanned, numerous times.” 

These actions by the President, his attempts to undermine Constitutional law and to encourage others to do the same, make him unfit for office. You can’t enforce the law while maintaining a President who cares nothing for the same law that made him President in the first place. But his golfing during a pandemic adds another charge to his list: that of presidential neglect. He has neglected the American people at a time in which they need their leader, all because they didn’t vote to give him a second term. Of course, the stimulus checks they’ve needed for months haven’t arrived either. Trump finally agreed to $2,000 checks but withheld his view on them until after the election. Why not pass the stimulus checks before the election? 

He has tried to undermine election law, claim that an election done according to law was rigged and stolen from him. He has perpetuated this same lie to his loyal fan base and has worked to undermine election law and encourage state officials to illegally find him votes that he didn’t earn. This President Trump, who claims to be a President of “Law and Order” (as he said this summer with Black Lives Matter protests), is a President who only cares about law and order if it benefits him. 

He is a lawbreaker, and the US Constitution is clear: lawbreakers cannot and must not be tolerated. There must be consequences, punishment, penalty, when the law is disregarded. 

As of yesterday, Congress voted to impeach President Donald John Trump for a second time by a vote of 232-197. Trump is the first US President to be impeached twice.