After seeing an old episode of The West Wing, a friend suggested that
the show had gotten a point of Constitutional law wrong. The show
seemed to suggest that the president must notify Congress, or the
cabinet, in writing, that he is transfering the power of his office to
the vice president due to impending disability (in this case,
surgery), and that his failure to do so created a vacuum in the
Executive branch while the president was unconscious. My friend says
that the vice president acts as president from the moment a president
cannot perform his duties, whether the president has given written
notification or not. This would cover sudden illness, grave injury,
the administration of anesthesia or whatever: basically, when the
president cannot serve, the powers of his office devolve
unquestionably to the vice president (or to whomever is next in line)
until the president can serve again. Is he right about this?

Hello mccook-ga,

There is room for debate on this issue, though my opinion is that the
Vice President cannot officially act as President until the President,
or the Vice President, and a majority of the Cabinet notify Congress.

The text of the Constitution (Art. II, Sec. 1, Cl. 6) states: "In Case
of the Removal of the President from Office, or of his Death,
Resignation, or Inability to discharge the Powers and Duties of the
said Office, the Same shall devolve on the Vice President ...."  That
makes it seem like the transfer of power is automatic.

"Article II" [page 27 of PDF file, which is page 435 of document]
"The Constitution of the United States of America: Analysis and
Interpretation" by the Congressional Research Service (1992)
GPO Access
http://www.access.gpo.gov/congress/senate/constitution/con005.pdf

However, the Twenty-Fifth Amendment (Sec. 3) states: "Whenever the
Vice President and a majority of either the principal officers of the
executive departments or of such other body as Congress may by law
provide, transmit to the President pro tempore of the Senate and the
Speaker of the House of Representatives their written declaration that
the President is unable to discharge the powers and duties of his
office, the Vice President shall immediately assume the powers and
duties of the office as Acting President."

The following section (Sec. 4) states: "Whenever the Vice President
and a majority of either the principal officers of the executive
departments or of such other body as Congress may by law provide,
transmit to the President pro tempore of the Senate and the Speaker of
the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office,
the Vice President shall immediately assume the powers and duties of
the office as Acting President. ..."

"Twenty-Fifth Amendment"
"The Constitution of the United States of America: Analysis and
Interpretation" by the Congressional Research Service (1992)
GPO Access
http://www.access.gpo.gov/congress/senate/constitution/con036.pdf

In other words, the Vice President can't just decide for himself, "The
President is incapacitated; I'll take over right now."  Either the
President or the Vice President, along with the Cabinet, must follow a
process before the Vice President can "assume the powers and duties of
the office as Acting President."  Until that time, it seems that the
Vice President is not the Acting President.  If the Vice President
could just say, "I'm President", or just start acting as President,
then these provisions of the Twenty-Fifth Amendment would be
meaningless.

Here's a discussion of the West Wing episode you mentioned, and the
constitutional provisions relating to it.  My view is in accordance
with this discussion.

"West Wing Pondering" (Oct 5-7, 2000) [see especially messages 23-27]
<rec.arts.tv>
Google Groups
http://groups.google.com/groups?hl=en&lr=&ie=UTF-8&safe=off&threadm=01c02fdb%241f6f3920%24LocalHost%40bmckee.link.ca&rnum=1&prev=/&frame=on

Also, you might be interested in this law review article:

"Presidential Inability and the Twenty-Fifth Amendment's Unexplored
Removal Provisions", by Scott E. Gant (Winter 1999)
The Law Review of Michigan State University, Detroit College of Law
http://www.law.msu.edu/lawrev/99-4/1-Gant.pdf

- justaskscott-ga


Search terms used on Google and Google Groups:

"twenty-fifth amendment"
"25th amendment"
"devolve on the vice president" "unable to discharge"

Excellent explanation, and terrific sourcing. Thanks.