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25th Amendment.pdf
07 January 2021
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The 25th Amendment: origin, deadlines and its mechanism

The 25th Amendment has again been pronounced by many international media, but what assumptions does it allow and in what situations can it be applied? 

This amendment consists of 4 sections, and describes the course of action in 4 situations: 

- In the event of the death of the President of the United States

- In the event of the vacancy of the President of the United States

- In the event that the President of the United States decides to delegate his functions to the Vice-President on a temporary basis.

- Declaration of incapacity of the President by the Vice-President and a majority of the members of the Cabinet. 

History of this amendment

This amendment was created after the assassination of United States President John F. Kennedy in November 1963, with Vice President Lyndon B. Johnson taking his place. 

Congress at the time decided to pass this amendment in Congress on July 6, 1965, and it was ratified on February 10, 1967. Indeed, this amendment has been used three times, during the presidencies of Ronald Reagan (1985) and George H. W. Bush (in 2002 and 2007). All of them were used to temporarily transfer the president's own powers to the vice president in office owing to Reagan's and Bush's absences for health reasons.

Could Donald Trump be designated as unable to continue to carry out his duties as President of the United States?

This idea has been on the minds of many politicians since Donald Trump took office as president in January 2017. The fact is that there are just under two weeks to go before the end of Trump's presidency, and the inauguration of Joe Biden as the 46th president of the American country

Section four of this amendment provides the method by which both the vice president and members of the presidential cabinet (or such other body as Congress may by law provide) may determine the inability of the president to continue in office

Section four of this amendment contains the following language:

"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". 

Once this section is in place, and in the event that the President denies his inability to govern the country, the President pro tempore has 4 days to file a written statement with Congress announcing the reasons for the determination of presidential incapacity

Congress will then meet within 48 hours to discuss the written statement. A period of 21 days after receipt of the written statement - or a period of 21 days after the date on which Congress is required to meet - is set to determine the President's incapacity which must be supported by two-thirds of Congress and the House of Representatives.

If sufficient votes are obtained, the Vice-President shall have the duties and powers of the President. If he does not have them, the President shall continue to hold office.

Having explained this exceptional mechanism, and described the deadlines and the way in which it is to be carried out, it is difficult to see how it can be implemented with less than two weeks to go before Donald Trump leaves office as President of the United States government. 

Copyright © The Impact Lawyers. All rights reserved. This information or any part of it may not be copied or disseminated in any way or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of The Impact Lawyers. The opinions expressed in this article are those of the authors and do not necessarily reflect the positions or policies of The Impact Lawyers.
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