One of the things I appreciate about the opportunity to write this column is the fact that I regularly learn or am reminded of something worth knowing. Today’s offering and last month’s are no exception.
In December, I was reminded of the power of social media. Someone posted my column on Facebook where it was shared by several more people. I heard from folks around the country, including some high school classmates that I haven’t seen in years. While this was very heartwarming, it also reminded me that misinformation and even hate can spread rapidly through the various platforms.
Returning to more typical topics this month, I learned about some constitutional and statutory provisions that have been in the news lately. The Founders realized that they had not thought of everything, so they included Article V, which allows, and provides a procedure for, amending the Constitution.
Since ratification in 1788, the Constitution has been amended 27 times. Some of those, such as those we know as the Bill of Rights, get more attention than others. Others, such as the Third Amendment, dealing with quartering of soldiers in homes, are rarely mentioned.
The 25th Amendment has recently received attention. I shall not comment on possible reasons why. But, having heard some discussion of it, I thought I should check it out.
Article 2 of the Constitution deals with the president. The 25th Amendment supersedes a portion of that article dealing with presidential vacancy, disability or incapacity. It tells us what happens if certain circumstances occur.
Section 1 of the amendment directs that the vice president shall become president if the president dies, resigns or is removed. That is how we remember it from social-studies class. However, the three situations mentioned are not the only possibilities.
Consider the possibility of a president contracting a serious but nonfatal illness that leaves him or her incapacitated for a period of time. Section 3 allows the president to send a message to the leaders of the Senate and House of Representatives declaring that “... he is unable to discharge the powers and duties of his office.”
The duties will be discharged by the vice president as acting president. This status continues until the president sends a declaration canceling the first one.
What about a situation where the president cannot make such a declaration? Section 4 provides the answer. The vice president and a majority of the “principal officers of the executive departments” can send the declaration that the president is unable to perform the duties of office. In that event, the vice president assumes authority as acting president.
Once the president decides he or she can return to duty, he or she is required to send a message to the leaders of both chambers of Congress declaring no inability exists. Thereupon, he or she resumes the powers and duties.
There is yet another scenario in which there is a disagreement as to whether the president is capable of serving. If the president sends the message above, but the vice president and officials mentioned above send another declaration that the president is still unfit to serve, Congress has to decide.
Specifically, if two-thirds of both the House and Senate find that the president is not able to perform the duties of the office, the vice president would serve as acting president. If the two-thirds mark was not met, the president would remain in power.
While that might make for an entertaining novel, let us hope it never plays out in reality.
While the focus of the amendment is on the office of president, it does contain a section dealing with the possibility of a vacancy in the office of vice president.
In such an event, the president is empowered to nominate a vice president. That person takes office if confirmed by a majority vote “of both Houses of Congress.”
In addition to the provisions discussed so far, we have a statute setting forth the order of presidential succession. Television viewers may recall the show “Designated Survivor.” The Kiefer Sutherland character was secretary of housing and urban development.
I do not remember the details of the show, so I cannot say whether it was consistent with the law. Under the actual statute, he would have been No. 13 in line. (At the time of writing this, Ben Carson holds that position.) There are actually 17 positions in line. The most recent addition to the list secretary of homeland security.
David Bernthal of Mahomet is a retired 21-year federal magistrate. He is of counsel with the Webber & Thies PC law firm. His email is firstname.lastname@example.org.