Talk:Twenty-fifth Amendment to the United States Constitution

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January 3 to 9, 2021 (3rd)

The following references may be useful when improving this article in the future:

Birch Bayh, The Twenty-Fifth Amendment: Dealing with Presidential Disability, 30 Wake Forest L. Rev. 437 (1995)
Robert E. Gilbert, Presidential Disability and the Twenty-Fifth Amendment: The Difficulties Posed By Psychological Illness, 79 FordhamL. Rev. 843 (2011)
Thomas H. Neale, Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress. Congressional Reference Service, report no. R45394 (November 5, 2018)

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This page has archives. Sections older than 30 days may be automatically archived by Lowercase sigmabot III when more than 4 sections are present.

Proposed legislation

I think the coverage of the recently-proposed legislation creating a body to assess incapacity under the Amendment is worth including. I've seen some attempts here, and a reversion of them. The text added strikes me as too embroiled in the present and the whole Trump/anti-Trump factor.

The amendment says "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"... and up to now, it's always been a matter for the Cabinet ("principal officers of the executive departments"); and this is the first (I think) legislation to provide for the other alternative, the "such other body as Congress may by law provide". It ought to be covered, but as apolitically as possible. TJRC (talk) 21:10, 9 October 2020 (UTC)

Some of the references in the "Refideas" template above could help with that. I no longer have Heinonline, but the Bayh reference looks like a particularly good one. Bayh was one of the earliest proponents of the amendment as Senator; and, since his article was in 1995, it clearly predates all the Trump angst. TJRC (talk) 21:59, 9 October 2020 (UTC)

I support adding a reference to such legislation, but with some caveats.

First, the amendment and the proposed legislation must be correctly described. Some news articles have incorrectly claimed the amendment can be used to remove a President from office and others have referred to the proposed legislation as creating a body that alone could declare a President to be disabled. Nobody can be removed from office under the 25A and under Section 4 the VP must agree that the President is disabled; it can be with a majority of the Cabinet or with a majority of a Congressionally created body, but the VP must agree for Section 4 to be invoked.

Second, we have to keep the text of the proposed legislation in mind. This is so we avoid synthesis. Many people will interpret the proposed legislation and, while it would be accurate to quote those interpretations, we should avoid citing them, because that could easily confuse readings as to the contents of the proposed legislation.

Finally, avoid giving the proposed legislation undue weight. The amount of attention the article gives the proposed legislation should be relative to the amount of attention it receives in Congress, the news media, and academia.

I know most editors will find the above to be obvious, but it's very important that all editors contributing to this article be accurate and neutral in this matter. SMP0328. (talk) 00:22, 10 October 2020 (UTC)

Not sure if there's more but one removal was done by me for two reasons: 1) undue emphasis on Trump 2) wrong section ("Considered invocations" is just factually incorrect). This would be much more natural to present as a continuation of " Proposal, enactment, and ratification". The basic news ("bill on setting up a committee") is fine if it's noteworthy. I am not sure it is noteworthy yet. CapnZapp (talk) 08:41, 10 October 2020 (UTC)

Since there has been no activity on this subject, maybe y'all thought my response to be opposed to including info about the proposed legislation. I'm actually not. I just ask you to find a better place for it in the article than under "considered invocations", since it isn't about considering an actual invocation, it's about changing procedure re: future invocations. Cheers CapnZapp (talk) 09:48, 12 October 2020 (UTC)

Sources for further article development

Fordham Law Archive of Scholarship and History: "articles written by Dean Feerick at the time of the Twenty-Fifth Amendment’s drafting; articles from three symposia at Fordham Law School, one on the vice presidency and two on the adequacy of the presidential succession system; and, the reports by Fordham Law School’s first and second Presidential Succession Clinics"
Yale Law School Rule of Law Clinic (2018). The Twenty-Fifth Amendment to the United States Constitution: A Reader's Guide (already in article)
Feerick, John D. (2014). The Twenty-Fifth Amendment: Its Complete History and Applications. Fordham University Press. ISBN 978-0-8232-5201-5 (already in article)
Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress (PDF). Congressional Research Service.
Bayh, One Heartbeat Away
https://ir.lawnet.fordham.edu/twentyfifth_amendment_archive/ Huge amount of stuff
See external links

Ideas for further development

Inpopcult -- Freerick "complete" Ch.16; Readers guide p.4
Done Comments on importance of secn 2 to removing Nixon without, effectively, making House Speaker president: Bayh in Feerick p.xix, likely Freerick ch10 on Ford, maybe ch14 on congressional action; definitely Freerick p.255ff
McCormack's comments re private agreement during first LBJ administraiton, Feerick pp99-100 (cf. Nixon/Eisenhower -- and see Freerick chapter on history of presidential inability incidents)
Done Fix department singular/plural drafting error mention

"incapacitated"

I've put and tags on the word "incapacitated" in the Section 4: Declaration by vice president and cabinet members of president's inability section of this article, because the word does not occur in the amendment and is never substantiated anywhere in this wiki article. Softlavender (talk) 03:21, 13 January 2021 (UTC)

The sources, and in particular the scholarly sources, freely use the words incapacity/incapacitated/incapacitation etc. as synonyms for unable and inability, and this is in keeping with the ordinary meaning of these words. Honestly, I don't see what the concern is. E Eng 03:36, 13 January 2021 (UTC)

IMHO Section 4 addresses the case of an incapacitated president who is unable or unwilling says the same thing as Section 4 addresses the case of a president who is unable or unwilling but with more words, "incapacitated" and "unable" being synonyms. Levivich /_hound 03:45, 13 January 2021 (UTC)

A gear seems to have slipped in that usually steel-trap brain of yours. If we do what you appear to be suggesting, we'd have

Section 4 addresses the case of a president who is unable or unwilling to execute the voluntary declaration contemplated by Section 3.

Well, a normal, fully able president would be unwilling to execute the Section 3 declaration, and that's as it should be. That's not one of Sec 4's use cases, so I think we need incapacitated. E Eng 04:04, 13 January 2021 (UTC)

Quoting from Feerick p. 117:

In the House debates of April 13, 1965, Representative Richard Poff said that Section 4 provides for two categories of cases: (1) when the President "by reason of some physical ailment or some sudden accident is unconscious or paralyzed and therefore unable to make or to communicate” a decision; and (2) "when the President, by reason of mental debility is unable or unwilling to make any rational decision, including particularly the decision to stand aside."

So Section 4 provides for two categories:

Physically unable (physical incapacitation)
By reason of mental disability, unable or unwilling (mental incapacitation)

A president who is partially but not totally physically incapacitated (e.g. conscious but confined to bed), and not mentally incapacitated, and thus is able, but not willing, to make a declaration, would not be one of Sec 4's use cases. In other words, not every incapacitated president who is not willing is covered: it has to be unwilling due to mental debility, and I don't think that is clear enough in the current language.

What about Section 4 addresses the case of a president who, due to physical or mental incapacitation, is unable or unwilling to execute the voluntary declaration contemplated by Section 3. or something like that? Levivich /_hound 04:33, 13 January 2021 (UTC)

You're like a used car salesman, you know. I came in arguing for fewer words, you've got me walking out arguing for more. Levivich /_hound 04:38, 13 January 2021 (UTC)

Well, we can't really take legislative history like this on its face, because we need an authoritative source to tell us what specific stuff qualifies as legislative intent. Both Feerick and the Reader's Guide sometimes quote bits of debate as representing scholarly consensus, and sometimes just to show a range of opinion. But I think we can short-circuit this issue by looking to Feerick p115:

Section 4 covers the most difficult cases of inability--when the president cannot or does not declare his own inability.

It seems to me that the current text ...

Section 4 addresses the case of an incapacitated president who is unable or unwilling to execute the voluntary declaration contemplated by Section 3

... paraphrases that just right assuming (a) we're past the incapacitated issue, and (b) we're OK with "unwilling" for "does not". (We could use some kind of "unable to, or fails to," locution, but I think that would be unnecessary and really awkward.) E Eng 06:00, 13 January 2021 (UTC)

Including "incapacitated" implies that there is some status or test required to invoke Section 4, whereas the amendment itself is clear that it is the declaration by the VP et al which is the requirement, the actual status of the president is irrelevant, even in the case where the president transmits a counter declaration.

Similarly section 4 does not require that the president is "unable to execute the voluntary declaration contemplated by Section 3", a president fully able to do so could still be declared unable to discharge their office by the VP et al.

Wnjr (talk) 10:29, 13 January 2021 (UTC)

Well, I don't think incapacitated implies there's a status or test required, any more than does unable, so let's put the issue of that choice of word aside by assuming, for the moment, that we say unable (the amendment's word) instead. So then there are your other points:

the amendment itself is clear that it is the declaration by the VP et al which is the requirement, the actual status of the president is irrelevant
section 4 does not require that the president is "unable to execute the voluntary declaration contemplated by Section 3", a president fully able to do so could still be declared unable

That's all true, but there's a difference between the amendment's procedures and the intent behind those procedures. The former are given in the amendment; the latter, as you note, are not, but that doesn't mean they don't exist, and that's why we look to sources such as the one I quoted just above your post. That quote (by the guy who wrote the amendment) is explicit about what problem this section is meant to address. E Eng 15:08, 13 January 2021 (UTC)

Actually, to address (I think) everyone's concerns, how about
Section 4 addresses the case of a president who cannot, or does not, execute the voluntary declaration contemplated by Section 3.

That jettisons the whole incapacitated bit, and directly follows Feerick's word choices of cannot and does not (avoiding the connotations of unwilling). Can we all get on board with that? E Eng 15:19, 13 January 2021 (UTC)

I'm fine with it. But I still think it would be better as Section 4 addresses the case of an incapacitated president who cannot or does not execute the voluntary declaration contemplated by Section 3. or Section 4 addresses the case of a president who, due to mental or physical incapacitation, cannot or does not execute the voluntary declaration contemplated by Section 3. I don't think we should omit the most important part of Section 4, which is that a Section 4 declaration is a declaration that the president is incapacitated ("unable to discharge the powers and duties"). Section 4 addresses the situation of a president who can't or won't make the voluntary declaration because of inability; omitting that part seems to leave the sentence incomplete. Levivich /_hound 17:01, 13 January 2021 (UTC)

Are NEVER satisfied? OK, so how about

Section 4 addresses the case of an unable president who cannot, or does not, execute the voluntary declaration contemplated by Section 3

That satisfies your desire (with which I agree) that we get back the premise that the prez is unable (but this time using that word instead of incapacitated). However, I violently disagree with anything along the lines of president who, due to mental or physical incapacitation, cannot or does not execute, implying that the debility must not only make him unable to carry out his duties, but also that he won't declare because of that debility. I mean look, a president might know he's unable but refuse to declare just because he's a sociopathic criminal narcissist who puts his own needs above the country's. That seems impossible to believe, of course, and any president doing that would be far and away the worst president in history, but still the text needs to accommodate it. E Eng 00:00, 14 January 2021 (UTC)

Isn't that what Poff is saying, though ("when the President, by reason of mental debility is unable or unwilling to make any rational decision, including particularly the decision to stand aside"): that the inability or unwillingness to stand aside must be by reason of debility, and not just, hypothetically speaking, run-of-the-mill sociopathic criminal narcissism? And to your earlier point, is Feerick quoting Poff here as an example of consensus, and Yale quotes Feerick quoting Poff in a footnote (too lazy to look up which one) saying the same thing (and including the "by reason of debility" language)? Levivich /_hound 00:45, 14 January 2021 (UTC)

First of all, I mean, it's Yale so consider the source. Beyond that, the key is to note that Yale introduces Poff's and others' statements with, "Indeed, while they listed a number of potential examples of presidential inability, the framers of the Amendment scrupulously avoided placing specific limits on the term." So we're back to where I said, Well, we can't really take legislative history like this on its face, because we need an authoritative source to tell us what specific stuff qualifies as legislative intent. What Congressmen said is primary, even if quoted by Yale or Feerick; Yale's and Feerick's expert evaluations, however, are secondary. If you look at the material I inserted in recent days about the scope of "inability", you'll see I scrupulously stuck to statements Yale and Feerick make in their own voice, except where I used examples drawn from others, which I labeled as examples illustrating something Yale/Feerick said. E Eng 02:12, 14 January 2021 (UTC)

No, you're absolutely right. I apologize for citing Yale. Levivich /_hound 02:15, 14 January 2021 (UTC)

What do you think of the current Section 4 addresses the case of a president who is unable to discharge the powers and duties of the presidency, but cannot, or does not, execute the voluntary declaration contemplated by Section 3.? I like it. Levivich /_hound 03:55, 14 January 2021 (UTC)

Perfection is finally attained not when there is no longer anything to add, but when there are no longer any surplus commas to take away.

— Antoine de Saint-Exupéry, Wind, Sand and Stars (tr. Lewis Galantière)

I think it approaches perfection. And now that I've removed a surplus comma, it's absolutely perfect. E Eng 04:55, 14 January 2021 (UTC)

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