25th Amendment: Acting President Is Not President

Calls abound for the removal of President Biden over his objection, using the involuntary disability provision, with Vice-President Kamala Harris to then assume the presidency. What the text of Section 4 makes clear, however, is than under that provision, she...

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Calls abound for the removal of President Biden over his objection, using the involuntary disability provision, with Vice-President Kamala Harris to then assume the presidency. What the text of Section 4 makes clear, however, is than under that provision, she can be Acting President only.  Section 3, covering voluntary disability, provides the same.

Herewith the full text of Section 4, the “challenge” provision of the 25th Amendment, setting forth the rules and procedures for ascertaining presidential involuntary inability to discharge the “powers and duties” of the presidency:

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, transmit to the President pro tempore of the Senate and 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 shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.

Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. (Emphasis added).

A vice-president can only become President under Section 1, which states: In the case of the removal of the President from office, or of his death or resignation, Vice-President shall become President.

An Acting President exercises the “powers and duties” of the presidency, but does not hold the office of the presidency. This means that Harris cannot nominate a new vice-president, as Section 2 states:

Whenever there is a vacancy in the office of the Vice-President, the President shall nominate a Vice-President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Given the proximity of events to the upcoming election, this distinction may seem academic. But Harris, who ardently wants to become the first female president, must win the 2024 election to become president-elect, and then be sworn in on January 20, 2025 to become America’s 47th President.

Put simply, Section 4 was not designed to forcibly remove a president from office. The Constitution’s procedure for such removal is impeachment by the House, per Article I, sec. 2, cl. 5; and then obtaining a conviction at trial in the Senate, per Article I, sec. 3, cl. 6.

The distinction would hardly be academic, if a vice-president became Acting President with years left in the president’s term, as there would be a protracted vacancy in the office of the vice-presidency. The last vice-presidential vacancy that lasted over a year was 14 months between Lyndon Johnson’s November 22, 1963 ascension to the presidency, and Hubert Humphrey’s swearing in as vice-president on January 20, 1965.

Since ratification of the 25th Amendment in 1967, there have been two brief vice-presidential vacancies: two months in 1973 while Gerald Ford was waiting for Congress to confirm his appointment by President Nixon; and four months in 1974 while Nelson Rockefeller was waiting for Congress to confirm his appointment by President Ford. During those intervals the next-in-line of presidential succession was House Speaker Carl Albert (D-OK).

Signs of Biden’s cognitive impairment were substantial enough in mid-June 2021, for Rep. Dr. Ronny Jackson (R-TX), who had served as personal presidential physician for three presidents (Bush 43, Obama, and Trump), to call for President Biden to take a mental competency test — less than five months into his term.

This could have become a huge succession problem during the current administration, were the president to have had a stroke and lapsed into a coma, unless he had prepared a memorandum to the vice-president akin to that authored by President Eisenhower, on March 3, 1958, which subsequently was adopted by presidents Kennedy and Johnson. It provided:

 THE PRESIDENT and the Vice President have agreed that the following procedures are in accord with the purposes and provisions of Article 2, Section I, of the Constitution, dealing with Presidential inability. They believe that these procedures, which are intended to apply to themselves only, are in no sense outside or contrary to the Constitution but are consistent with its present provisions and implement its clear intent.

(1) In the event of inability the President would — if possible — so inform the Vice President, and the Vice President would serve as Acting President, exercising the powers and duties of the Office until the inability had ended.

(2) In the event of an inability which would prevent the President from so communicating with the Vice President, the Vice President, after such consultation as seems to him appropriate under the circumstances, would decide upon the devolution of the powers and duties of the Office and would serve as Acting President until the inability had ended.

(3) The President, in either event, would determine when the inability had ended and at that time would resume the full exercise of the powers and duties of the Office.

Alternatively, in event of inability of a president to communicate, a properly executed legal instrument (living will, power of attorney) can provide a basis for a surrogate decision on the president’s behalf.

(During his two terms as vice-president under Bush 43, Dick Cheney prepared a March 28, 2001 pre-signed undated resignation letter in event of his inability to carry out “for a significant time” his responsibilities as vice-president, or to communicate the same after a triggering health emergency.)

Bottom Line. If Constitutional formalities are observed, and absent a legal instrument designating a surrogate decision maker, Joe will have to agree — or be persuaded to agree — to step down.

READ MORE on presidential succession from John Wohlstetter:

The Summer 2024 Presidential Succession Crisis

The Summer 2024 Presidential Succession Crisis Explodes

John C. Wohlstetter is the author of Presidential Succession: Constitution, Congress and National Security (Gold Institute Press, 2024).

 

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