Some are calling for the 25th amendment, but how does it work?

On Jan. 12, a day before voting to impeach President Donald Trump, charging him with “incitement of insurrection,” the U.S. House of Representatives passed a non-binding resolution asking Vice President Mike Pence to invoke the 25th Amendment to strip the president of his powers.

The amendment’s fourth section authorizes the vice president and a majority of cabinet officers to declare a sitting president unable to discharge the powers and duties of office. This section has never been invoked. Indeed, Pence rejected the House’s request to invoke it now, saying he does not believe that “such a course of action is in the best interest of our Nation or consistent with our Constitution.”

But as this political drama played out, legal scholars and a renowned expert on the U.S. Congress hosted an online discussion about the history and meaning of the 25th Amendment, offering context on how its provisions might apply to events unfolding in the nation’s capital.

The event was hosted by Yale’s Institution for Social and Policy Studies (ISPS).

Akhil Amar, Sterling Professor of Law and Political Science, and David Mayhew, Sterling Professor of Political Science and a renowned scholar of Congress, were joined on the virtual panel by John Feerick, the former dean of the Fordham University School of Law, who had a hand in drafting the amendment. ISPS Director Alan Gerber, dean of the division of social sciences, moderated the discussion.

No provisions in the original Constitution offered direction on how to proceed when a president becomes incapacitated. This omission occasionally caused confusion, such as in 1881 when President James Garfield lingered in a critically ill state for more than two months after he was shot by an assassin, Feerick explained.

Congress considered the issue during Eisenhower administration after the president suffered several serious medical issues, including a severe heart attack, he added, but didn’t land on a solution. Then, the assassination of President John F. Kennedy underscored the need to clarify procedures should a president become incapacitated.

Adopted nearly four years later, in 1967, the 25th Amendment set procedures for replacing a president or vice president in the event of death, resignation or incapacitation. While the first three sections have been invoked for a variety of reasons — from the resignation of President Richard Nixon in 1973 to when presidents have undergone medical procedures — the fourth section never has.

Asked whether section four would be appropriate in the current circumstances — a week after a deadly riot at the U.S. Capitol — Mayhew said he believed that a plausible argument can be made that the president is unable to discharge the powers and duties of his office.

Amar, a renowned constitutional scholar, suggested that it would be better for the country if the president declared himself unable to discharge the powers and duties of the office under section three of the amendment, which allows presidents to voluntarily step aside for an undetermined period.

Even if Trump were removed from power through the 25th Amendment, he would retain the title of president, Feerick noted.

“The president never loses his office under the 25th Amendment,” he said. “He loses the discharge of the powers and duties of the office. …  An impeachment and conviction strips the president of the title and office.”