25th Amendment – Prof Josh Blackman on What You Need to Know | Judicial Watch

I’m Chris Farrell, and this is on Watch. Welcome to on Watch, everybody, the Judicial Watch podcast, where we go behind the headlines to cover news and information that the mainstream media probably doesn’t want you to know too much about. We try to recover some lost history and explain the inexplicable. We’ve got a real treat for you today. We’re going to discuss the 25th Amendment, something you’ve probably heard batted around by various talking heads, but something you really don’t get too much background or detail or understanding of. We’re very privileged today to have an expert, a legal expert.

Joining us, the constitutional law professor, Josh Blackmon. And Josh is a professor at the South Texas College of Law in Houston, Texas. Welcome to on Watch, Josh, thanks for having me. We really appreciate you taking time to talk to us. There’s a lot of folks out there that will whip out the term 25th Amendment, and it gets kind of a drive by treatment. There’s not a lot of discussion, not a lot of explanation. And I think, I mean, just from my own experience, my own reading, you know, the presidential succession, who comes in, who steps in, should the president die, be assassinated, be sick? That whole question of succession, first of all, it hasn’t always been the same.

It’s changed over our history. But most importantly, it got locked in with a constitutional amendment, and that’s what we refer to the 25th Amendment. Can you give us kind of an overview of presidential succession? Obviously, it’s an important issue, who’s going to be the chief executive? But how has that shifted over time? Sure. So let’s go back to the framing 1787. Why do we have a vice president? And the answer, in short, is because the framers understood at some point the president might die, he might resign, he might be impeached, and very late in the constitutional convention.

This position of the vice president was sort of created, and at first, its only actual power was basically stand there and waiting until the president died. Its kind of a weird position to have. The VP doesnt really have much authority. What can the VP do? He can preside over the Senate. He can cast a tie breaking vote. And thats about it, which can be very important. I mean, given the circumstances, that can really be a pivotal thing. Like you said, it’s pretty narrow on those issues. It’s pretty narrow. There have been vps who have cast zero tie breaking votes.

I think Harris has set the record for the most tiebreaking votes. And that’s been done with the judicial nominees, I think set it before her. But the VP base was created and the way the original constitution worked. It said that. I’m going to just paraphrase that if the president were to die or become disabled or become incapacitated, that the vice president shall act as president. I’m just summarizing it. And what does that mean? Does the VP actually become president? Or does the VP just exercise the powers of the presidency? The constitution isn’t actually clear in this point.

Right. And this came to a head with President William Henry Harrison, who you might remember, died in about a month. The story goes. He gave his inaugural dress. It was very cold and rainy. He didn’t wear enough of a jacket. Apocryphal. But he died very quickly. So his vice president. Remember Tippecanoe and Tyler two. Right. Tyler became president. Or did he. There was a debate. Was Tyler actually the president? Or was he simply just exercising the powers of the presidency? Tyler said, stop this. I’m president. That’s it. And that became known as the title precedent. But it wasn’t resolved then.

You had President Lincoln was assassinated later. You have President Garfield, who died in office. You have President McKinley, who died in office. You have President Franklin Roosevelt, who died in office. A lot of presidents died. And in each case there’s this question. Is the VP like an acting president or the real president? And may not make much of a difference, but it’s an important question. Then we get to the 1960s. And we had a couple experiences that really shaped people. One of which was FDR’s death in office. And frankly, he’d been sick for years. As always, the people, media covered it up.

They don’t want to talk about it, but he was quite ill. And then President Eisenhower, Ike had severe health issues while he was in the White House. And they were actually worried that he might become incapacitated. Eisenhower actually reached an agreement with Vice President Nixon. We’re talking about Nixon this week. The 50th anniversary. Basically, if Ike becomes ill, Nixon would basically share the powers. But there was really no way for the president to hand off powers temporarily to the vice president. All he could do is resign. Right? That was his only step. So in the 1950s and sixties, Congress started thinking, okay, we need to fix this.

We need to solve the situation where, number one, the president can’t temporarily hand over powers to the vice president. But number two, what happens if the president is not actually dead, but perhaps in a coma and is unable to hand over the powers? Or maybe the president loses his damn mind. And we need to sort of get in there and override his decision. And that gave birth to the 25th Amendment. It passed Congress in 1965 and was ratified about a year and a half later in 1967, which is pretty quick for modern standards. And there are four sections for the 25th Amendment.

I’ll go through one at a time, if I may. Sure. I’m just going to read it. Section one resolves the William Henry Harrison Tyler issue. It says that if the president dies or resigns or is removed, the VP becomes president. Period. Right. So there’s no longer a debate about who’s the real president. The VP is the president. So when president. Well, we’ve not actually. Actually, JFK was. I think he was already dead by this point. But in theory, at least, if a president. Oh, when Nixon resigned. I’ll use that one as an example. It was clear that Jerry Ford became president.

There was no actual sort of debate about that. Okay, that’s section one. Section two provides a mechanism by which the vice presidency can be filled. We’ve only had a handful of dead presidents. Maybe five or six of my memory just counted quickly. We’ve had a lot of dead vice presidents. For whatever reason, vps tend to die in office more often because they’re older, they’re sicker, they don’t really matter. I don’t know. There’s now a mechanism by which the VP can be filled. And this is actually how Jerry Ford became vice president. If you remember, Nixon’s VP was Spiro Agnew.

He resigned due to some other scandals from his governorship in Maryland. What the Constitution says is when there’s a vacancy in the VP position, the president nominates a VP. And then both houses of Congress, the House and the Senate, by a majority vote, can confirm a VP. Jerry Ford, if memory serves, was the House minority leader from Michigan. And basically, Nixon nominated him as the VP, and he was confirmed. So now there’s a way that, number one. Number one, you know who the president is if the VP dies. But number two, if the VP is vacant, you can put someone else in there.

And that becomes very important, because to have a clean line of succession, you need a vice president. Right. And, of course, Ford ends up becoming our only unelected president. Exactly. Because of that succession. So Jerry Ford actually was the first president to tip off sections one and two. He became vice president by this new process. Right? Yep. And number two, after Nixon stepped down, I will resign the presidency if I could. Noon tomorrow. Right. Then Ford elevated automatically. So Jerry Ford is mister 25th Amendment. It’s just amazing how this is written for him. That in the span of a fairly short period, you have both a vacancy in the VP and a resignation.

That’s sections one and two. Those are not particularly controversial. Section three is where things start getting a little bit more controversial. Okay, let’s say the president is going to get a colonoscopy, right? It’s a fairly routine procedure. All men over a certain age tend to get these on a regular basis. It requires a general anesthesia, and you’ll be under anesthesia for maybe an hour or two, whatever it happens to be. Imagine again, you’re the leader of the free world. A missile is coming to the United States from Russia, and you are under anesthesia. You cannot be awakened.

What are you supposed to do? Another example. Ronald Reagan was an attempted assassination at the Washington Hilton. He did not go into shock. He was alive, awake, but brought to GW hospital, had to go. Emergency surgery. He was put under. He was under anesthesia. There was some discussion. Okay, what are we going to do? We need a president. What if, you know, Russia pushes the red button, fires a missile, right? Trump had Covid. It was pretty bad. Apparently, he was in the hospital to Walter Reed for several days. It was unclear how much he was able to transact business.

Section three of the 25th amendment allows the president to temporarily hand off his powers to the VP. This is why having a VP is so important, because of section three. And for that temporary position, or the temporary time, the VP becomes what’s called acting president, he’s not really the president, he’s just acting as the president. But what’s important about section three is that the president can terminate it. So you might say, okay, I am going under anesthesia for 2 hours for my procedure, and then when he comes out, all right, bring it back. Right? I want the power back.

All the president has to do is send a letter to the president pro tem of the Senate and the speaker. If he does that, he can self control this temporary handoff of power. And this is. I think everyone agrees this is a good model. Right? It’s not that you give the president the power to the VP and then he becomes king for the day. Ah, I’m not giving it back. The president can reclaim it at any point. The example you used of Reagan was interesting because section three wasn’t actually engaged, so it was not. He’s out of it in the hospital.

Bush Sr. Is in the air, flying back, and that’s where very famously, General Haig walked up and said, well, I’m in charge here. And everyone freaked out over that. It was actually a relatively reasonable thing. To say, because he was the senior most executive in Washington at the White House, but everyone went out of their minds that it was some ridiculous claim to a coup. And I don’t think Haig either meant that or did anything like that. But it was an interesting question because Reagan didn’t say, I’m out of it. Bush is in charge, and he could have.

Right. And Bush is in the air. And he was just getting phone calls with updates about what was happening with Reagan. So there was a gap. There was this unclear moment, you know? And I want to just put. Because people here like Reagan, do you think Reagan, after he was shot, was thinking about the 25th Amendment? Like, did he think about it? Was he saying, oh, man, hope I don’t die? Right? Yeah, yeah. You know, he made that joke. I hope the doctors, Republicans, as it were. But, you know, you can imagine a president who is shot.

Is it even on his mind to invoke. It’s not like he talked to a lawyer. He’s being rushed in an ambulance to the ER. Right. If I could just kind of break your chain of thought here a second. Another case that comes to mind is, of course, Woodrow Wilson. Right. Because essentially he has a stroke, or it’s reported that he had had a stroke. I don’t think it’s ever been very well or very clearly documented what occurred to him. But he was medically disabled in some way. And very famously, Edith Wilson, his second wife, then the first lady, was essentially screening everything.

She was acting like the White House chief of staff. Nothing came into or went out of the presidential bedroom without her, you know, essentially controlling it. And it escapes me who Wilson’s vice president was at the time. But whoever he was, he wasn’t being consulted. It was essentially Edith Wilson arguably making the decisions. And Woodrow Wilson was laid up in bed another period where there’s a weird gap. It wasn’t clear who’s really in charge. I think you’ll save that question for me later. Who’s in charge today? And that brings us to section four again. Section three is where the president can voluntarily transfer his power to the VPN.

Section four is, we might call the Jack Ryan, you know, the Tom Clancy one, where it’s not voluntary. And this is the one that was discussed. On January 6, at least one or two members of Trump’s cabinet considered invoking section four. It was never done and Pence rejected outright. But let me just walk you through. It’s a little bit complicated. The first one’s to happen. The VP must decide. Okay. The president cannot discharge his powers. Okay. Okay. He cannot discharge his powers, but the VB can’t make a decision by himself. It’s the vice president plus a majority of the cabinet.

All right, so you’re talking about the VP who the president picked, and the cabinet who the president appointed. If the VP and the majority of the cabinet agree at that power, the president’s authority is automatically ended. Temporarily. Right? Again, if the VP and the cabinet agree, the VP becomes acting present right away. And I think that’s eight cabinet members who would have to get on board. So it’s the VP plus eight of all the secretaries, the attorney general, et cetera. They would have to all come to agreement. And I think that’s the number breakout. It’s actually hard, because.

Do acting Cabinet secretaries count? Right. Remember, by the time Trump got to 2021, half the people in Ivan Senate confirmed. They weren’t even just, you know, whoever they got. Just. So it’s actually a difficult question who counts to the numerator and who counts for the denominator. None of this is clear in my mind. I mean, it’s actually a very hard question. It is. Yeah. I just. I had not thought about that. But you’re right, there was all sorts of acting people. People who had been confirmed as a deputy, you know, they were the deputy secretary of whatever, but the boss left, he was elevated.

So they’re acting. So how much of a secretary are they? I. Right. I don’t know. Again, what the numerator is and what the denominator is. Question. And you think you want a clean answer, but when the blank hits the fan, you can’t exactly get a clean answer. So. All right, but let’s assume that we’re at a normal time and you know what the numbers are. You get a VP and a majority of the cabinet. They sent a letter to the Senate and the House. The VP becomes acting president immediately. Okay, but then the president is not out of the game.

Right. Keep in mind, I will make this point. The president can just fire everyone who might invoke the 25th Amendment. In fact, I want to go back to Woodrow Wilson. It’s rumored that Woodrow Wilson threatened to fire anyone who questioned his sanity or his ability. If a president got wind that his cabinet was invoking the 25th Amendment, he would just fire all them. And they’re not cabinet officials anymore. So it’s been very hard to pull off the sort of. I won’t call it a conspiracy. That’s not the right word. Like a palace coup. I don’t say that either.

But this whisper can’t be without tipping off the president, because eventually someone will tell the press and the president will just fire whoever’s trying to go against him. Let’s say you get the numbers. If the president comes back and tells the Senate in the House that I have no disability, the president resumes his powers. Okay, he does that by letter. Right? Again, he just a letter. He rebuts the vice president’s claim. Right. But there’s a period in which, again, the VP in the cabinet can go back to the House and Senate and say, no, he’s not capable of exercising these powers.

Okay, so there’s a. Basically a four day gap between when the president says, I am able to come back, and then, what do you call it? The VP in the cabinet can say, no, he can’t. Okay, so let’s say the president says, I can come back, and the VP in the cabinet says, okay, that’s fine. Whatever disability exists is gone. The president is the president, and we move on. We pretend it’s never happened. But if the VP and the cabinet say, yeah, no, this guy’s insane. He’s crazy. He’s comp. You know, whatever. That creates another process where the VP remains acting president.

And the House and Senate have 21 days to decide this, what has to happen. Within 48 hours, the House and Senate must come into session. And within 21 days of this letter declaration, they must determine who’s president. To knock out the sitting president, you need a two thirds vote of both houses, the House and the Senate. So again, after the president sort of says, no, I’m fine, the VP says, no, you’re not fine. It goes to the House, and they have 21 days to then vote on whether the president stays in office. That’s a two third vote.

If the two third vote in both houses fails, the president resumes his office. If the two third vote succeeds, then the vice president continues acting as president. And we have a new president. But he’s not really president. He’s acting president. Curious. It’s not a section one. It’s a section four issue. Not that it matters terribly. So this is, again, it requires all members of the elected branches, both the executive and the legislative, to sort of figure out who’s going to be in charge. If we ever actually. I mean, I can imagine if Mike Pence had had a different mindset on January 6 and had invoked section four, he probably could have gotten a majority of the cabinet.

Maybe you know politics better than I do. Could he have gotten two thirds of each house? Probably not. You know, but by the time Trump was impeached, he was already, I mean, convicted. The Senate happened. He was already out of office. No one cared anymore. Right. But there was fear on January 6 that he was going to, like, blow up the world or whatever. So, you know, I don’t know. Had Pence pushed the 25th amendment on January 6, maybe we could have seen it come into action. But I. Pence said, and he made this point very clear in a letter to Pelosi, the 25th amendment is not designed to knock out an unpopular president.

Trump maybe was making decisions people thought was bad, but he was still able. He was still able to do the job. And that’s not the basis. This is not a way to just a referendum on unpopular president. So we didn’t invoke it, but we perhaps could, but it didn’t happen. So now we face the situation where we have the current sitting president, Joe Biden, who by everyone, and I mean capital e, everyone’s estimation, is not the man he used to be, whatever that means. But there’s been a decline, some would say physically and mentally, others. But he’s not the guy he was certainly years ago.

And even he sort of tacitly, although not directly, admitted in his withdrawal from the democratic race for president, he did not address his mental acuity or his physical health or he scrupulously avoided that altogether. But he said, look, it’s time to move on and hand over the race to Harris. People argue, well, if you’re not able to conduct a political campaign and engage in a race for your party to lead the government, well, then you’re not capable or suitable to continue serving in the office. And I’ve heard some pretty persuasive arguments to that effect. So what’s your take on the.

Do you think there’s any real pressure, or is there any real likelihood, or is that just a lot of hot air? Oh, I think. Would Biden just decide to step down to give his vp the big seat before the election? So she’s not just Candid Harris, he’s President Harris. Yeah, maybe. I think it’s unlikely they’ll have to 25th amendment him. I think they knocked him out of the primary of the election just by having George Clooney write op ed. I think you would need to actually invoke it. Didn’t take a vote to make Harris democratic catch.

The central Committee decided that. I mean, no one actually a single person in America then the delegates voted for her. So, I mean, I don’t think you would need a 25th amendment vote, but the provision or section one. Section one would kick in. Yeah. Yeah. Because he would say, look, I think that we may see, and this is wildly speculative, of course, but I think we may see sometime in September, Biden decide that he needs to go rest, and he elevates Harris to give her the mantle of the presidency so that for at least one full month leading into the election, shes President Harris.

Shes branded as that. That’s how she’s advertised. That’s how she’s promoted. And I mean hypothetical, but nonetheless, I think it’s a real thing. I think the better question is the president’s cognitive abilities. The constitution doesn’t define what it means to be unable or enable the word they used. And there’s no age limit on the presidency. There are good questions about the president’s capacity to actually be the leader of the free world. No one would say this out loud. They kept secret his own, his performance for the debate. That’s all kept secret. But you can use the 25th amendment not just for January 6, but also a president who’s just not there present.

I don’t know. But I’ll make one last point. If Harris does become president, then we do lose a tie breaking vote in the Senate. And this may not matter to people outside of my world, but there are a lot of judicial nominees who are pending who not get through a VP. Harris leaves. Senator Manchin has said he won’t vote for any judicial nominees who don’t have a single republican vote. And there’s some people who might be really close. So if Harris steps down or if Biden steps down, you know, I think some noms may not get through, and that’s not the end of the world.

If she wins, then she’ll just renew them. But if Trump wins, those are seats that remain open for him. The other fun question is, let’s just run our hypothetical forward. Biden resigns in September. We now have President Harris. We also now have a vacancy for vice president. And that vacancy would have to be filled, and you’d have to get a majority in the House and Senate. It doesn’t have to be field. It can be vacant for a few months. Aha. There’s another interesting option. Right, but the wrinkle. We haven’t gotten to this yet. We’re almost half time, I think.

But the wrinkle is if the VP is empty, and God forbid something should happen to the president. Say hello to President Mike Johnson. Right. Because the speaker of the House is first in line, and maybe there’ll be a topic for another episode. But there’s actually debate that the speaker of the House, as a legislative officer, cannot be in the line of succession. And there might be an argument that it’s actually Secretary Blinken who becomes president. Yeah, that’s the way it was at the time of Lincoln’s assassination, because the idea initially was to really decapitate the entire government.

Johnson was supposed to be assassinated as well, and in which case, the then secretary of state, which I think was seward at the time, he would have been elevated because the succession line went down to state, not over to the House. Right. All I’ll say is having a vacant. I mean, you might think having a vacancy in the VP is no big deal because it might help Harris’s campaign. But I mean, you know, my opinion, the Secret Service is not very good nowadays. You know, it’s not. And I mean, I mean, that’s a very. I laugh only I’m laughing because the truth is often very humorous or kind of bizarrely humorous.

It’s risky to our republic to have a vacancy just for a campaign ad. Yeah. I mean, as much as I think. I mean, who knows if Biden’s in charge or, you know, Jill Biden is here, Edith Wilson’s in charge, and whoever’s in charge. Right. That goes to Elinor Roosevelt. I don’t know. But having an empty VP slot even for a period of two or three months is dangerous. Right. It’s risky. I mean, I get. Yeah. I mean, if Biden can’t do, he should step down, but to do it just for a. Yeah. Know, a campaign bump for his successor, it’s risky because, I mean, unless, you know, a moderate Republican is nominated who could actually gain the appeal of everyone else, you know, of two thirds Republicans.

One other thing. If Harris steps down, who presides on the January 6 joint session of Congress? Right. It would be. It would be probably the Senate majority Leader Schumer or the Senate president pro Tem. Is that Patty Murray is my math right on that one? I think you are correct on that. Yeah. So you have Patty Murray presiding over the January 6 joint session of Congress. I don’t want to get to section three, an insurrection again, but if Trump wins, which one of those is going to try and DQ Trump an insurrection? So, I mean, again, if Harris is the.

Is the vice president, she will have to rule on her own election. So there’ll have pushed and turns. This gives a whole new meaning to October surprise. Right. This could be very messy. I’m not sure. Josh. Where can folks follow your work and your publications and your social media and all that. Oh, sure. I write the volley conspiracy@reason.com and you can read my stuff at Twitter oshmblackman. Josh, thank you so much for joining us. I want to come back to you. We may have some unusual twists of history in the next couple of months, and I want to bring you back in to comment on it.

Happy to do it. Thanks so much. Thank you so much for joining us. I’m Chris Farrell on watch.
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