What legal and political arguments have scholars made for expanding or restricting the 25th Amendment’s use?
Executive summary
The Twenty-Fifth Amendment’s Section 4—never fully tested in court—has become the focal point of scholarly debate over whether its use should be broadened to check “unfit” presidents or narrowed to guard against political abuse, with legal scholars and policy centers offering competing interpretations and reform proposals [1] [2]. Advocates for expansion argue for a living-instrument approach and new implementing bodies, while skeptics warn of politicization and prefer cultural or statutory fixes to encourage prudent invocation [3] [4] [5].
1. Legal arguments for expanding Section 4: remedying democratic breakdowns
Some scholars argue that the Amendment was drafted to cover all conditions that prevent the president from discharging duties and therefore should be read broadly to address contemporary “unfitness,” including willful misconduct or incapacity not strictly medical; Paul Campos asserts the amendment was meant to allow coordinated executive and legislative action to remove a president manifestly unsuited for office and urges congressional reforms to make it a robust check on demagogues [3]. The Constitution Center’s historical account and framers’ statements emphasize the Amendment’s intent to cover impairment of faculties, which reformers read as latitude to address modern political emergencies like refusal to carry out constitutional duties [6] [7]. Proponents buttress their case by noting Section 4 contemplates Congress providing an alternative “body” to the Vice President and Cabinet, a vehicle for expanding institutional capacity to assess inability beyond the original actors [2] [7].
2. Political arguments for expanding use: preventing national harm when norms fail
Politically, advocates say the real risk is not overreach but paralysis: vice presidents and cabinet officials may be too timid to act in crises, so Congress or new panels should lower the political and practical barriers to intervention to prevent catastrophic misrule [4] [8]. Fordham Law scholars and others have proposed statutory reforms—such as creating a disability review panel or clarifying standards—that would depoliticize the process and provide a credible safety valve when elected leaders flout constitutional norms [5] [9]. Supporters frame expansion as safeguarding continuity and the public interest by activating dormant constitutional tools designed after Kennedy’s assassination to ensure government stability [10] [11].
3. Legal arguments for restricting Section 4: text, separation of powers, and judicial limits
Opponents caution that Section 4 lacks a judicially administrable standard and that its vague terms—“unable to discharge the powers and duties”—invite political actors, not courts, to make consequential removals; the Library of Congress notes the Supreme Court has not definitively interpreted the Amendment, leaving legal contours unsettled [1]. Legal skeptics argue that converting political disagreement into a constitutional incapacity finding risks distorting separation-of-powers norms and that the Amendment was aimed at physical or clear mental incapacities rather than policy disputes, a narrower textual reading reflected in many framers’ statements [6] [1].
4. Political arguments for restricting use: preventing partisan weaponization
Politically, critics warn that expanding Section 4 invites Machiavellian maneuvering and could turn the presidency into a removable political prize whenever a temporary majority dislikes an occupant; commentators note fears of factionalism if cabinet members or a new body are incentivized to oust presidents on partisan grounds [4]. The Article and institutional histories underscore concerns about cultural reluctance—the framers expected grave, nonpolitical circumstances—and skeptics therefore prefer reinforcing norms and using impeachment or elections rather than widening a removal mechanism that could be abused [4] [10].
5. Procedural middle ground: reforms, bodies, and cultural fixes
A recurring scholarly compromise combines modest statutory reforms—clarifying the “other body” Congress may create, establishing neutral review panels, and setting evidentiary procedures—with efforts to change constitutional culture so officials are willing to act when genuine incapacity exists but reluctant to weaponize the tool [5] [8] [4]. Fordham and other law clinics have cataloged concrete legislative proposals and institutional designs intended to balance timely response with protection against partisan removals, reflecting the shared goal across perspectives of preserving continuity while guarding legitimacy [5] [9].
6. Conclusion
The debate is not simply legalistic or academic: it turns on whether institutions can be designed to separate genuine incapacity from political disagreement, a question that animates calls both to empower and to constrain Section 4; scholarship mapped in Fordham, Colorado Law, and constitutional commentaries shows clear fault lines between those prioritizing preventive capacity and those prioritizing safeguards against politicization, with many experts favoring procedural reforms and cultural change over unilateral reinterpretation [3] [5] [4].