44 Pages Posted: 4 Nov 2014
Date Written: October 9, 2014
This Article offers a new approach to understanding, classifying, and assessing cases of presidential disability. In constitutional terms, “presidential disability” refers to any condition that renders the President of the United States “unable to discharge the powers and duties” of the office. Remarkably, the existing legal infrastructure under the Twenty-Fifth Amendment provides no guidance for determining when a President has become constitutionally disabled. Nor does it explain when the President (under Section 3) should initiate the succession process, and when the Vice President and other senior officials (under Section 4) should take the lead instead. During crises of presidential disability, administrations have felt obliged to devise ad hoc solutions. The framework developed here poses three basic questions to formulate a legal diagnosis of a President’s condition: How severe is the disability? When is the disability expected to end? Where is the disability located? The new framework indicates, based on a given diagnosis, who — either the President or the Vice President with other designated officials — would be best positioned to determine whether to invoke the Twenty-Fifth Amendment. This systematic approach, grounded in historical experience, should mitigate the uncertainties of what has so often proved a politically charged and disorderly process.
Keywords: Constitutional Law, Legal History, Executive Power, Presidential Succession, Administrative Law, Separation of Powers, National Security Law
Suggested Citation: Suggested Citation
Schuker, Daniel J. T., Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment (October 9, 2014). Journal of Law and Politics, Vol. 30, No. 97, 2014. Available at SSRN: https://ssrn.com/abstract=2518554 or http://dx.doi.org/10.2139/ssrn.2518554