The Fatal Flaw in the 25th Amendment

We can anticipate that the amendment will sometimes work just fine. If the president falls into a coma, the vice president and “the principal officers of the executive departments” (presumably the cabinet) will certify this fact to the speaker of the House and the president pro tempore of the Senate (now always the majority leader), and the vice president will take on the presidential duties.

What, however, if the president is conscious and functioning but seriously mentally impaired, an incident of that impairment being an inability to recognize it. The president might then fight a 25^th Amendment certification.

The president will, of course, get wind of any 25^th Amendment whisperings. There will then be a demand made of each cabinet member for support of the chief. Anyone so disloyal as to decline or hedge will be fired. This will insure against a successful certification vote in the cabinet. If the members of the cabinet have been selected more for their loyalty to the president than for their subject matter expertise, experience, and administrative ability, the negative vote will eventuate with little need for firings or threats. So, for a certain sort of incapable president, removal by the vice president together with the cabinet simply won’t work.

The alternative is the sidelining of the president by “such other body as Congress may by law provide.” We can imagine a world in which bipartisan legislation in Congress had passed a law, signed by the president, providing for a non-partisan panel of appropriate experts.  We are not in that world and there are no signs that we would ever get there in the normal course.

Were the 25^th Amendment to become a pressing matter, and assuming, still, a president who tenaciously clings to power, new “other body” legislation will have little hope. If the president is unable to persuade or intimidate 218 representative or 41 senators to vote “nay” on the bill, then there will be a presidential veto.  After that the president needs only 34 Senators or 146 Representatives to stop an override. If the president has a strong and loyal base, voting the amendment’s removal body into existence would be career suicide for many members of the president’s own party. 

The long and short of it is that the 25^th Amendment does not afford an effective way to sideline a president suffering from very substantial mental deterioration one of the sequelae of which is an inability to accept that there has been any mental deterioration.