The Constitution and mentally unstable presidents

Dean Falvy, Newsweek, Feb 2017- The Twenty-fifth Amendment provides a process for the president to declare himself “unable to discharge the powers and duties of his office.” In that case, the vice president becomes the acting president until the president recovers from his disability.

This is simple enough when the president is aware of an upcoming medical procedure and voluntarily invokes the Twenty-fifth Amendment for a limited period of time, as President Reagan and President George W. Bush did on three separate occasions. But what if the president is so physically or mentally disabled as to be unable to recognize or acknowledge his own disability?

As I discussed in a previous article on Trump’s chances of completing his term, Section 4 of the Twenty-fifth Amendment provides an “involuntary” procedure allowing the vice president and a majority of the Cabinet to notify the leaders of Congress that the president is disabled. In that case, “the Vice President shall immediately assume the powers and duties of the office as Acting President.”

This assures continuity of government if the president falls victim to a sudden illness. But if the president recovers—or disputes the existence of a disability at all—he can attempt to reclaim his office by informing Congress. This will happen automatically, unless the vice president and a majority of the Cabinet provide a further declaration to Congress within four days that the president remains disabled.

If that happens, Congress must convene and make a high-stakes decision: Who is entitled to exercise the powers of the presidency, the president or the vice president?

But the president has a clear advantage in this contest: He will regain his powers unless the House and the Senate each confirm his disability by two-thirds majorities. To put it in the simplest terms, the support of either 34 senators or 145 members of the House would be sufficient to restore power to an allegedly disabled president.

In the case of physical disability, invocation of the Twenty-fifth Amendment is likely to be straightforward. In most cases, an inability to communicate will signal the president’s disability, and the restoration of communication will mark the end of it.

Mental disability is an entirely different kettle of fish. It is not necessary to argue that the president is “insane” in a legal or clinical sense—the constitutional standard is simply whether he is “unable to discharge the powers and duties” of the office.

What if a president “performs” his duties, but does so erratically and irrationally? And if the president loudly insists that he is capable, will the vice president and Cabinet dare invoke the Twenty-fifth Amendment, even if they are privately convinced that he is not?

As long as he retains the loyalty of a substantial minority in either the House or Senate, the president can turn the tables on his scheming lieutenants and reclaim his office. Once restored to his powers, the president can (and certainly would) dismiss the Cabinet members who doubted his capacity.