January 8, 2021
Rose McDermott is the author of "Presidential Leadership, Illness, and Decision Making", and regularly comments on presidential health and power. Most recently her work has appeared in Vox, the Atlantic, and the Economic Times. Following the January 6 attack on the U.S. Capitol, we asked her to provide additional analysis of the history and potential application of the 25th Amendment.
The first draft of the 25th amendment was written by hand on a yellow lined legal notepad by Senator Birch Bayh on a plane just after the assassination of John F. Kennedy. It took a few years, but remarkably few changes, for it to pass into law. The goal? Fill an important lacunae in the Constitution: what to do if the President becomes impaired while in office. Over time, the norm had become established that if the President died in office, the Vice President would take over. But the problem of what to do with a seriously ill, but still alive, President, became more acute after Woodrow Wilson had a stroke in office and the non-elected troika of his doctor, his wife and his secretary essentially ran the country for the better part of the remainder of his term.
The history and motivation of the 25th amendment matter because they point to the fact that the amendment was really intended to respond to the imperative of a medically ill president, and not primarily a mentally ill one, or one suffering from dementia, as indeed Ronald Reagan apparently was toward the end of his Presidency.
Various people can debate the full nature and extent of President Trump’s psychological ailments, but few would argue against the reality of his extreme narcissism. And it should not surprise any clinician, or indeed any scholar or policymaker, that when you prick the self-delusional wound of a true narcissist, enormous aggression will result.
The challenge with the 25th amendment is that it is not designed to respond to this kind of challenge and thus, temporally and structurally, it is not well suited to an immediate crisis resulting from mental illness. One of the key phrases in the amendment allows Congress to designate an alternative body to the Cabinet to adjudicate the President’s fitness, but Congress has never seen fit to create such an entity, leaving such judgment in the hands of a Vice President, who must initiate, and a Cabinet who must endorse such assessments. These individuals are typically loyal to the president, or at least dependent on him for continued employment.
In addition, if this group writes to the President to tell him they consider him unfit, he has up to 4 days to reply in writing that indeed, he thinks they are the ones who are crazy. At this point the question gets thrown to Congress, who has up to 21 days to decide which side they believe. If they do not act in that time, power stays with the President. But in the current circumstances, the clock would run out before the President could be removed unless Congress chose to act sooner. And it would take a two-thirds majority of Congress to decide that the President is unfit for office. Any law that requires the consent and agreement of the accused to render judgment against him leaves a great deal to be desired in proving adequate to the challenge of removing a leader suffering from severe or acute mental illness.
Listen to a recent interview on the topic with Professor McDermott on Watson's Trending Globally podcast.