The 25th Amendment was supposed to fix the issue of presidential disability. It didn’t
Buried in Cassidy Hutchinson’s bombshell testimony before the House Select Committee was her depiction of Secretary of State Mike Pompeo informing White House Chief of Staff Mark Meadows that there was a movement afoot inside the Cabinet to invoke the 25th Amendment and declare Donald Trump incompetent to serve as president following the Jan. 6 insurrection. According to Hutchinson, Pompeo told Meadows, “You’re technically the boss of all the Cabinet secretaries.”
Given Vice President Pence’s reluctance to remove Trump, two Cabinet secretaries, Betsy DeVos and Elaine Chao, resigned hours after the Capitol riot. DeVos told Trump, “There’s no mistaking the impact your rhetoric had on the situation, and it is the inflection point for me.” Chao agreed, stating, “As I am sure is the case with many of you, this is deeply troubled me in a way I simply cannot set aside.”
The actions of Pence and the Trump Cabinet are contrary to how the framers of the 25th Amendment envisioned it should work in such a situation. The amendment grew out of concerns following the Eisenhower and Kennedy presidencies that there be an orderly transfer of power should the president become physically or mentally incapacitated.
During his terms in office, Dwight D. Eisenhower had a series of health crises that included a heart attack, stroke and bouts with Crohn’s disease. In a private letter to his vice president, Richard M. Nixon, Eisenhower instructed that Nixon act in his stead should Eisenhower be unable to discharge his duties. John F. Kennedy and Lyndon B. Johnson exchanged similar letters, ones that would surely have been used if Kennedy had survived the assassination attempt. But these documents lacked any legal authority. A few days after Kennedy’s assassination, the New York Times published an editorial highlighting the issue and chided Congress for its failure to act.
In 1965, Congress passed the 25th Amendment, and the state legislatures ratified it two years later. The amendment provides that should a presidential disability occur, the vice president and a majority of the Cabinet transmit a written declaration to the speaker of the House and the Senate president pro-tempore declaring that the president is “unable to discharge the powers and duties of his office.” The vice president then becomes the acting president. If the president disagrees with that assessment, Congress must decide who is in charge by a two-thirds vote.
When the 25th Amendment was debated, some political scientists expressed serious reservations. James MacGregor Burns argued that giving the vice president any role in declaring a presidential disability could make that person a usurper of executive power. Richard Neustadt believed that any Cabinet role would complicate the relationship between the president and the heads of its departments.
Today, this portion of the 25th Amendment is not working. Mike Pompeo, acting as the senior Cabinet officer, informed his so-called “boss,” Mark Meadows, that the Cabinet was considering removing Trump from power. This was not the only time the chief of staff was placed in this role. After the attempted assassination of President Reagan in 1981, it was not the Cabinet but Chief of Staff James Baker who decided whether or not to invoke the 25th Amendment. He didn’t. But as we now know, Reagan’s condition was far more serious than the White House told the public at the time.
Leaving this decision to the chief of staff is completely contrary to the proposals made by the Brownlow Commission. In 1936, Franklin D. Roosevelt named Louis Brownlow, a distinguished student of public administration, to study the operations of the White House. The commission concluded, “The President needs help,” and it recommended the creation of the Executive Office of the President, which houses the president’s staff.
Two years later Congress passed the Reorganization Act of 1939. But the Brownlow Commission proposed that strict limits be placed on staff members, saying they should have “a passion for anonymity” and not interpose themselves between the president and the heads of Cabinet departments. Staffers were to assist the president, not make policy. Today, the commission would be appalled to learn that a secretary of state declared the White House chief of staff his “boss,” or that any decision to declare a presidential disability rested with that person.
The work of the Brownlow Commission has given way to a powerful Executive Office of the President under both Democratic and Republican administrations. Today 474 staff members work in the Biden White House, not counting those who work in other agencies of the Executive Office of the President. Meanwhile, the Cabinet has declined in importance, and few of its members have significant political constituencies — Hillary Clinton and Pete Buttigieg being recent exceptions. The otherwise unknown members of the Cabinet owe their loyalty and positions to one person, the president.
In its 1963 editorial, The New York Times noted that the problem of presidential succession “baffled the Founding Fathers and at least seven Congresses in the last century.” Despite the aim of the 25th Amendment to fix the problem, it baffles us still. It’s just one more example of a constitution that isn’t working.
John Kenneth White is a professor of politics at The Catholic University of America. His latest book, co-authored with Matthew Kerbel, is “American Political Parties: Why They Formed, How They Function, and Where They’re Headed.”