Q: I have two questions: President Joe Biden’s and former President Donald Trump’s ages are a concern for many of us. Biden is not going to run, but I think will stay as president through the election. So, can you explain the 25th Amendment?
T.B., La Mirada
Ron Sokol
A: The 25th Amendment clarifies that the vice president will become president should the latter die, resign or be removed from office (such as through impeachment). It also sets forth how vacancy in the office of the vice president will then be filled. In sum, the 25th Amendment is focused in large part on the order of succession.
So if the vice president is not available or able to step into the presidency, the powers and duties pass to the speaker of the House of Representatives, then to the president pro tempore of the Senate, and thereafter to cabinet secretaries, depending upon eligibility. Note that the succession can be temporary (for example, the president has a surgery and is under anesthesia), during which time the vice president will take over the powers and duties as the acting president.
Q: Second question: If those around the president feel he ought no longer be president because of infirmity, then what?
T.B., La Mirada
A: If the vice president and a majority either of the principal officers of the executive departments, or of such other body as Congress may provide by law, communicate to both the president pro tempore of the Senate, and to 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 is to assume the powers and duties as acting president.
Circumstances such as unpopularity, poor judgment and/or incompetence may not in and of themselves rise to the level of sufficient inability, but if such conditions prevent the president from carrying out his or her constitutional duties, they may then constitute a justifiable basis to replace the president, even in the absence of a formal medical diagnosis. Further, a president who showed disabling traits at the time he or she was elected is not shielded from a declaration of inability.
The president can issue a declaration claiming to be able, which sets in motion a four-day period during which the vice president remains acting president. Should the vice president and a majority of the “principal officers” not issue a second declaration of the president’s inability, he or she will resume the presidency. But should a second declaration be issued within the four days, then the vice president remains acting president, and Congress will consider the matter. Congress (both houses) have 21 days to vote by two-thirds majority as to whether the president is unable, and if that vote so indicates, the vice president will continue as acting president (otherwise the president will resume his or her powers and duties).
Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
Originally Published: July 23, 2024 at 11:55 a.m.
