An Examination of "Scandal" and the 25th Amendment

Even before I received several e-mails from friends asking me to take a look at one of its latest episodes, I have been hearing good things about ABC's new hit television show "Scandal" starring Kerry Washington as Olivia Pope.  I've watched a few episodes and, from what I've seen so far, the show is about as close to being on par with HBO-level programming as one can hope to see on a commercial television network.  The basic premise of the show is that Kerry Washington's character (Pope) is a former White House Communications Director who left the White House to start her own crisis management firm, Pope & Associates.  The firm, based in Washington D.C., charges top dollar to make sure that whatever skeletons you may have in your closet stay there for good.  As you can imagine, this type of service comes in quite handy in our nation's capital.  Oh and I forgot to mention one minor little detail: Olivia Pope is banging the President behind the First Lady's back.  Thus, the title of the show not only refers to Olivia Pope's clients but also to Pope herself.

***SPOILER ALERT - THIS POST DISCUSSES THE DECEMBER 6, 2012 EPISODE***

In a recent episode, President Fitzgerald Grant (played by Tony Goldwyn) has been shot in an assassination attempt and is rushed to a nearby hospital where he remains in critical condition.  Vice President Sally Langston (played by Kate Burton), who has a severe Type-A personality, ambitiously wastes no time in trying to assume command of the Presidency.  When the Secret Service, following our nation's protocols during such a crisis, attempt to take the Vice President to a secure location, the following conversation ensues:

Vice President Sally Langston (Kate Burton)

VP: "We're going to the south lawn of the white house."
Staff: "We have strict orders to escort you to the observatory."
VP: "The pilot's a marine, correct?"
Staff: "Yes, ma'am."
VP: "I am the acting commander-in-chief, he is following my orders and I am ordering him to take me to the south lawn of the white house.  You are welcome to catch a ride."

Minutes later she makes a televised address to the nation from the south lawn of the White House where she tells America that she is in command.  Immediately afterwards, she is confronted in the White House by President Grant's Chief of Staff, Cyrus Beene (played by Jeff Perry) and they have the following heated exchange:  

Chief of Staff Cyrus Beene (Jeff Perry)

Cyrus: "Do you know who lands on the south lawn?"
VP: "Cyrus-"
Cyrus: "The President of the United States!"
VP: "The man has a bullet in his head.  The country needs leadership.   The world-"
Cyrus: "He may have a bullet in his head but it's still his lawn!"
VP: "I am in charge now-"
Cyrus: "No, you're not in charge!  Have you read the whole constitution or did you just stop and rapture after the 2nd Amendment?"
VP: "I have had quite enough of this-"
Cyrus: "Allow me to summarize the 25th Amendment for you: in the case of the removal of the President from office or of his death or resignation the Vice President shall become President.  Since none of these things have happened the only way you're President is if the President himself signs power over to you or you gather the signatures of the cabinet.  And that may well have been a little confusing to you, so let me summarize further and tell you simply that if the President dies I'll call you.  Until then, these men are going to take you to a secure undisclosed location."
VP: "The hell they are. I'm not going anywhere."
Cyrus: "By being where you're not supposed to be you are threatening the security of this Great Nation. These men are under orders from the Department of Homeland Security and the Secretary of Defense to take you to a secure location.  Now you can walk out or they can carry you out.  And it makes no difference to them because guess what - they serve at the pleasure of the President.  And you are not the President."

So who was right?  Cyrus or the Vice President?  In order to find the answer we must go to the 25th Amendment (feel free to skim the following text, I'll give a break down afterwards):

AMENDMENT XXV:

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4. 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.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

If you've never heard of the 25th Amendment before watching "Scandal" then do not feel ashamed.  Even though there are 27 Amendments to the U.S. Constitution, we tend to only hear about the same handful over and over again.  For example, chances are you've heard of the 1st Amendment (freedom of speech, freedom of religion, freedom of the press, etc.) and after the recent Connecticut shooting we're all probably a little too familiar with the 2nd Amendment (right to bear arms), but nobody ever talks about the 25th Amendment.  That's probably because it doesn't deal with any of our substantive rights as citizens.  Rather, it's merely a procedural law that spells out what happens in the unlikely event that either the President or the Vice President is removed from office for one reason or another.  It was proposed two years after the assassination of President John F. Kennedy in '63 and was finally ratified by 3/4th of the states as an official Amendment to the Constitution in '67.

President Ford (left) and President Nixon (right)

The 25th Amendment is one of Hollywood's favorite Amendments because if we're talking about the 25th Amendment then that means all hell has broken loose and the country is going through some serious drama.  Despite its popularity with the film industry, the 25th Amendment has only been used 6 times in the history of the United States, and only 4 of those 6 times actually involved the Presidency: (i) Vice President Gerald Ford succeeded President Richard Nixon when Nixon resigned from office in '74; (ii) President Ronald Reagan temporarily granted the Presidency to Vice President George H.W. Bush in '85 while Reagan underwent surgery; and (iii-iv) President George W. Bush temporarily granted the Presidency to Vice President Dick Cheney while Bush underwent surgery in 2002 and again in 2007.   

It's also important to note that the 25th Amendment has never been the subject of a Supreme Court case.   That means that when you read the text of the law up above, what you see is literally what you get.

Section 1 of the 25th Amendment provides that the Vice President automatically becomes President whenever any one of the following three things happen: (1) the President is removed from office (e.g. the President is impeached by Congress); (2) the President dies; or (3) the President resigns (à la Nixon in '74).  Applying the plain text of Section 1 to the facts in "Scandal," we can see that none of these three things happened.  The President was not impeached.  Nor did he resign.  And even though he was shot and hospitalized in critical condition, he did not die.  Therefore, the Vice President incorrectly assumed the office of the President and issued an invalid order to Marine-1 when she commanded its pilot to fly her to the south lawn of the White House.  She also incorrectly informed the American people that she was in command of the Presidency.

Section 2 of the 25th Amendment only addresses the procedure for replacing the Vice Presidency, so it does not apply here.

Section 3 of the 25th Amendment provides the procedure by which the President himself or herself may voluntarily transfer the Presidency to the Vice President who will then become the "Acting President" until the President asks for his or her job back.  Section 3 is the section that was used by both Reagan in '85 and by Bush in 2002 and 2007 when each President temporarily transferred the Presidency to their respective Vice Presidents when they went into surgery.  In each case, the Presidents returned from surgery, wrote a letter to Congress saying that they were ready to resume their office, and that was that.  In the case of "Scandal," President Grant is unconscious so he cannot voluntarily transfer the Presidency under Section 3.

Which brings us to the infamous Section 4 of the 25th Amendment.  Again, this is the Section that Hollywood loves to invoke.  In real life, however, Section 4 has never been used.  Nevertheless, what Section 4 says is that if the Vice President and a majority of the Secretaries or Directors in the Executive Branch of the Federal Government (ie. the President's "Cabinet") all agree that the President is unable to do his or her Presidential duties -- because maybe they've been shot in the head, for example -- then they can write a letter to Congress saying exactly that and then the Vice President automatically becomes the "Acting President."

Now notice I said "Acting President" and not "President."  The reason why it's "Acting" is because the President, at any moment before their term is up, can write his or her own letter to Congress and say "hey, don't believe these clowns.  I've still got it!"  If that should happen, then the Congress must meet immediately (within 48 hours) to decide if the President has still "got it."  Section 4 gives Congress 21 days to figure this out.  If 2/3rds of each house of Congress says that the President is done, then the President is done.  But if they fall short of that 2/3rds vote, or if the 21 days expires and they haven't taken any vote at all, then the Vice/"Acting" President is tossed out and the President gets his or her old job back.

Sounds crazy right?  Now you can see why Hollywood loves Section 4.  Given our state of politics today, there is absolutely no way in hell that any of the events outlined in Section 4 can take place as described without somebody getting cursed out and/or hit with a flying chair on national television.

President Grant (Tony Goldwyn) and Olivia Pope (Kerry Washington)

As far as "Scandal" is concerned, we can only speculate where the writers will take the show next.  At the end of the episode in question, we see Vice President Langston obtain the necessary number of signatures required under Section 4 in order to make her the Acting President.  However, as discussed above, President Grant can still regain the Presidency under Section 4 (assuming he wakes up first) by writing a letter to Congress telling them he's ready to go back to work.  At that point, Congress will have 21 days to decide whether Grant or Langston will be President of the United States.

Enjoy.