Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4
Journal of Constitutional Law, Vol. 21, No.1, 2018
81 Pages Posted: 11 Dec 2018
Date Written: December 6, 2018
The first year of the presidency of Donald J. Trump brought attention to Section 4 of the Twenty-fifth Amendment, the constitutional provision that allows the Vice President and a Cabinet majority to transfer presidential powers and duties from a President who is “unable to discharge the powers and duties” of his office. Although the ensuing media discussion included many thoughtful contributions, it also produced many mistaken assertions by scholars, journalists and other commentators regarding the importance, scope, operation, and effect of Section 4. These mistakes are troubling because they may produce enduring misunderstanding regarding a provision designed to handle some of the most challenging, traumatic and contentious contingencies that might arise involving an incapacitated President and the transfer of presidential powers and duties to the Vice President. The errors also might provide material for political actors and their supporters to cite and use opportunistically to frustrate the proper use of Section 4. This Article exposes and corrects some of the mistaken assertions that have recently appeared in media discussions. It explores a range of textual, originalist, structural, pragmatic, and other constitutional arguments to shed light on significant, but sometimes misunderstood, questions regarding the importance, scope, operation, and effect of Section 4.
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