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Fixing the 25th Amendment

While a number of potential questions involving presidential disability could be fixed by modifying the Presidential Succession Act, to address the matter completely, in the opinion of the author revising the 25th Amendment itself would be warranted.

Presidential Succession:  Still a Potentially Flawed Process

In its attempt to address questions of presidential disability and succession, the 25th Amendment finally laid to rest the most pressing among them.  It clarified that the Vice President's succession to the presidency was automatic in the event of a vacancy.  It established a mechanism for filling Vice Presidential vacancies.  And it created not one but two methods by which a President's executive power could be exercised by a Vice President.

But in its effort to anticipate potential scenarios in which it might be implemented, the authors of the amendment created a law which could - at least potentially - do the exact opposite of its intent, paralyzing the executive branch of the United States Government.

To cover all the bases of potential presidential disability, if ever initiated, a two-step approach would be needed.  The first would be enacting a constitutional amendment that repealed Section 4 of the 25th Amendment, replacing it with a mechanism that makes a transfer of executive authority possible without involvement of a Vice President if that office were vacant.  The second would be replacing the decades old Presidential Succession Act with one that would give greater flexibility, both in terms of who would act as President, and under what conditions.

The Author's Proposal, Part One:  Amendment XXVIII

To address the potential "Vice Presidential vacancy block" written into Section 4, as well as to clarify what happens should a President and his Vice President and Cabinet disagree on his ability to resume service, it would be necessary to ratify a new constitutional amendment, amending the 25th.  The author proposes that such an amendment, at minimum:

(1)  Specify that if the office of the Vice President is vacant at a time when a President's incapacity is to be considered by his Cabinet, the Cabinet can act on its own intiative, perhaps by some form of supermajority (two-thirds) to make up for the absence of a Vice President; or

(2)  Stipulate that if there is a Vice Presidential vacancy (or simultaneous disability), another officer (e.g., the Chief Justice of the United States) could join with the Cabinet in the declaration.  This would have the effect of giving the Cabinet an option should Section 4 need invocation at a time when there is no Vice President available to step in.

(3)  At least mention that someone other than the Vice President is constitutionally capable of acting as President should it be necessary.  Despite over two centuries of there being at least some form of presidential succession law on the books in the United States, there is no provision in the constitution which specifies that anyone other than the Vice President could act as President should the need arise.  As with the Tyler Precedent, action as President by anyone other than the Vice President is considered a de facto law, but has never been tested.

(4)  Move the venue for a Section 4-related dispute about the president's capacity to return to office, taking it out of the hands of the United States Congress and reposing it in the Supreme Court, and clarifying that during the entirety of such a dispute, the Vice President would continue to act as President.

The Author's Proposal, Part Two:  A Presidential Succession Act for the 21st Century

The Presidential Succession Act of 1947 (and its amendments through 2002) have been a product of historical precedent and (most recently) compromise, and would poorly serve its purpose in the awful event it ever had to be applied.  To reflect the realities of the 21st century, an overhaul and expansion of the presidential succession list is in order.

However, the first modification shouldn't be an addition to the list, but a deletion - once again removing the Speaker of the House of Representatives and the President Pro Tempore of the Senate from the succession list.  The rationale is simple:  in the event of an emergency in which both a President and Vice President were killed or disabled, migrating officials from the legislative branch to sit atop the executive could prove counter-productive.  It would also remove a key Congressional leader from their post at a time when it might be imperative to spearhead emergency legislative efforts... and finally, it would elevate into the White House someone chosen not by the nation at large, but by a single state or congressional district.

"So, if the Speaker and President Pro Tempore are removed, you think the Secretary of State should be first in line, after the Vice President?"

No.  At least, not by default.  The placement of the Secretary of State as first among Cabinet officers seemed wise both in 1886 and 1947, primarily due to the circumstances of those times and the close relationships which generally existed between a President and his Secretary of State.

In modern times however, a President is just as likely if not moreso to have a closer working relationship with the Secretaries of the Treasury, Defense or Homeland Security.  Or perhaps the Attorney General, the National Security Advisor or the Director of National Intelligence.  To reflect this, some flexibility should be built into succession law, allowing a President to determine the line of succession as the times of the moment deemed it appropriate.

For example, an incoming President could establish an initial line of succession among a group consisting of the Attorney General and the Secretaries of State, Treasury, Defense and Homeland Security, placing them in the first five positions after the Vice President in whatever order he thinks is in the best interests of the nation.  After these five, he could similarly establish an order among remaining Cabinet officers to fill the seventh and successive positions; and finally, a third group could be comprise non-Cabinet but Senate confirmed personnel (e.g., the National Security Advisor, Director of National Intelligence, United States Trade Representative, etc.), providing a greater measure of continuity should a nuclear attack or other nightmarish situation befall the nation.

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