In the Press
Thursday, May 23, 2019Let’s Not Forget the Establishment Clause — A Commentary by Linda Greenhouse ’78 MSL The New York Times
Wednesday, May 22, 2019Does the Civil Rights Act Protect Gay Employees? The Court Will Decide. The American Prospect
Wednesday, May 22, 2019How A 1925 Law Evolved To Become Crucial For Employers Law360
Tuesday, May 21, 2019Trump's Increasingly Questionable Pardons Should Make Congress Act — A Commentary by Eugene R. Fidell The Hill
Wednesday, April 18, 2018
Rule of Law Clinic Releases “Reader’s Guide” for the 25th Amendment
On April 18, 2018, the Rule of Law Clinic at Yale Law School released “The Twenty-Fifth Amendment to the United States Constitution: A Reader’s Guide,” a document that provides guidance on critical interpretive and procedural questions regarding the 25th Amendment. Adopted in 1967, the 25th Amendment addresses what happens if the President of the United States is removed, dies, is incapacitated, or otherwise unable to fulfill the powers and duties of the presidency.
Former Solicitor General Ted Olson called the Guide “[a] meticulous and comprehensive analysis of the history and procedural workings of the 25th Amendment—an invaluable resource for anyone faced with the occasion to consider invoking and implementing its provisions.” Former White House Counsel Neil Eggleston described it as “[a]n authoritative, thoughtful, indispensable guide to a little understood constitutional provision,” and said that “this Reader’s Guide should be widely read and absorbed, across the country, but especially inside the Beltway and the West Wing.”
“Every citizen should read this as surely as knowing where the EXIT signs are in case of emergency,” said Jane Mayer of The New Yorker. Former Senator Birch Bayh, one of the principal drafters of the amendment, called it “[a] well-conceived Reader’s Guide to the never before invoked Section 4 of the 25th Amendment.”
Section 4 of the amendment is immensely consequential, but has received little scholarly attention. Section 4 provides a process by which the Vice President and the majority of either the Cabinet or a congressionally authorized body can declare a President “unable to discharge the powers and duties of his office,” and separate the President from those powers and duties, with the Vice President becoming Acting President. If the President contests this declaration of inability, the amendment empowers both houses of Congress (by a two-thirds vote of each body) to resolve the question in three weeks. Depending on the vote, the President may resume his official duties, or the Vice President may continue to serve as Acting President.
In the more than 50 years since ratification, Section 4 has never been invoked. There are no judicial or other authoritative opinions on its proper implementation, according to the clinic. Unlike other constitutional processes involving the office of the President, such as impeachment or even other sections of the amendment, there is no historical practice to guide its operation. As a result, the clinic said uncertainty persists about such basic questions as when Section 4 can or should be invoked, who would make important decisions, and how its processes should be implemented. Its legal requirements and implications have been misstated even by experienced legal commentators, according to the clinic. Yet once triggered, the constitutional timetable is swift and rigid. Critical national decisions would need to be made in less than a month, employing a procedure that is poorly understood, the clinic said.
To provide an authoritative analysis, the Clinic studied all available sources on the amendment and the intent underlying it. The Clinic examined the text, legislative history, critical academic commentary, and judicial analyses of the amendment, and consulted closely with leading experts, including Professor John D. Feerick, past Dean of the Fordham University School of Law, a principal drafter of the 25th Amendment who continues to be its preeminent commentator.
The Clinic’s key findings included the following:
- While the amendment’s framers generally contemplated Section 4’s employment in the case of the President’s mental or physical incapacitation, they also expressly disclaimed any intent to define “inability.” They purposefully set forth a flexible standard intentionally designed to apply to a wide variety of unforeseen emergencies. As a result, those deciding whether a President is “unable to discharge the powers and duties of his office” should focus on the overall effects of the inability—whether the totality of the circumstances suggests that inability prevents him from discharging the powers and duties of the presidency—rather than the specific characteristics of the inability itself.
- The Clinic found a general consensus that while medical evidence may inform the inability determination, Congress and the amendment’s other actors must render its own judgment as to presidential inability.
- The Clinic concluded that while the amendment is increasingly discussed in popular media, the United States government is unprepared for the unlikely event that Section 4 is triggered; most critically, there are no standing congressional procedures to be followed.
- The Clinic also released an addendum to the Reader’s Guide that recommends a list of congressional actions that could be immediately taken to clarify Section 4’s constitutional process, and minimize Executive Branch and Congressional chaos surrounding the transition of power to the Vice President and the adjudication of the President’s inability. These proposals include clarifying committees of jurisdiction, adopting formal standing rules and procedures for deliberation, creating a standing advisory committee, passing laws establishing procedures for the transition of power, and passing a joint resolution affirming the interpretive conclusions in the Reader’s Guide.
“The rule of law means that Section 4 should only be triggered in extraordinary circumstances. But our government and the American people must be prepared for such circumstances,” said Chris Looney ’19, who worked on the report. “Adopting these precautionary measures as standing procedures would clarify key legal questions about the 25th Amendment and help ensure political stability and legitimacy in the extraordinary event that Section 4 of the amendment is invoked,” added Nathaniel Zelinsky ’18.
“Section 4 was not intended to enable the replacement of the president because of mere policy disputes or unpopularity,” said Rich Medina ’18, another Clinic student who contributed to the report. “At the same time, the historical record makes clear that the question of inability is ultimately a political one, meant to be resolved, if necessary, by Congress – not courts or medical experts.”
The Rule of Law Clinic was founded at Yale Law School in the fall of 2016 to protect the rule of law against contemporary challenges. The 25th Amendment Project was undertaken as an independent research project of the Clinic, not on behalf of any client. No profits are being derived from this research, which was undertaken with the support of a grant from the Oscar M. Ruebhausen Research Fund at Yale Law School.
Yale Law School students and Clinic members Varun Char ’19, Colleen Culbertson ’19, Sameer Jaywant ’ 18, Chris Looney ’ 19, Richard Medina ’ 18, Aleksandr Sverdlik ’ 18, Emily Wanger ’ 18, Zoe Weinberg ’ 19, and Nathaniel Zelinsky ’18 contributed to the Reader’s Guide. The Clinic students were led on this matter by Sterling Professor of International Law and former Dean Harold Hongju Koh and William O. Douglas Clinical Professor of Law and former Deputy Dean for Experiential Education Michael J. Wishnie ’ 93, Lecturer in Law Hope Metcalf, Visiting Clinical Lecturer of Law Phil Spector ’ 00, and Fellow Matthew Blumenthal ’ 15.