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Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment
Since the election of President Donald Trump, the Twenty-Fifth Amendment to the Constitution-covering presidential incapacity-has been a frequent topic of public discussion. Meanwhile, Section 4 has become a mainstay in television dramas, which usually represents it inaccurately.
The country needs this complicated but essential topic explained. Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment is designed to educate and inform the public about Section 4 in an evenhanded and accessible way. This book is not about President Trump; it offers no opinions on his fitness for office. By the end of the book, though, it will be clear how Section 4 applies to him, as well as to any other president.
The country needs this complicated but essential topic explained. Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment is designed to educate and inform the public about Section 4 in an evenhanded and accessible way. This book is not about President Trump; it offers no opinions on his fitness for office. By the end of the book, though, it will be clear how Section 4 applies to him, as well as to any other president.
- GenresNonfiction
228 pages, Hardcover
Published October 14, 2019
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May 4, 2026
A Very Narrow Door for an “Unable” President
Brian C. Kalt, Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment (Oxford University Press, 2019)
Every constitutional crisis writes its own ghost story, and the one that haunts Brian Kalt’s Unable is the autumn of 1919, when a small cabal of wife, doctor, and secretary effectively governed the United States while a stricken Woodrow Wilson lay behind closed doors. Vice President Thomas Marshall, willing but unwanted, was kept at bay; Congress, paralyzed by the delicacy of the matter, did nothing. The country drifted, leaderless in fact if not in form, until Wilson’s term mercifully ran out. Kalt opens his slim, lawyerly book with this episode because it frames the question the Twenty-Fifth Amendment was eventually written to answer—and, as he persuasively argues, only partly succeeded in answering.
Before Wilson there had been Garfield, lingering eighty days between Charles Guiteau’s bullet on July 2, 1881 and his death on September 19, with the cabinet meeting at his bedside and the country’s business essentially suspended. The Presidential Succession Act of 1886, passed five years later, dropped the Senate president pro tempore and the Speaker of the House from the line of succession in favor of cabinet members; a 1947 Act, in a burst of postwar populism, put the Speaker and the president pro tem back on top, where a 1792 statute had originally placed them. None of this, Kalt is careful to point out, addressed the Wilson problem at all. We know the answer to the question of who governs when the President is dead or gone. Section 4 of the twenty-Fifth Amendment deals with Inability, a much harder problem, who governs when the President is still there but is “unable” do the job, whatever that means.
Kalt, a professor at Michigan State University College of Law, has made a career of unfashionable constitutional corners (his earlier book on presidential pardons was equally fine), and he brings to Section 4 the patience of someone who has actually read and thought deeply about the legislative history of this Amendment. The result is the best book in print on the subject: dry in the right way, generous to opposing arguments, and quietly devastating to the fantasy, regularly raised in television shows and by Hollywood, and revived in every administration since Nixon, that the Twenty-Fifth Amendment offers a back-door to impeachment for Presidents whom the political class has come to regard as intolerable.
The Amendment’s architecture is worth rehearsing because almost everyone gets it wrong. Section 1 confirms that the Vice President becomes President, not Acting President, on the death or resignation of the incumbent—settling a question that had technically been open since John Tyler’s self-promotion in 1841. At the time no one understood whether Tyler was an Acting President,” an interim president, or the real thing.
Section 2 fills a vice-presidential vacancy by presidential nomination and majority confirmation in both houses, the mechanism that gave the country Gerald Ford and then, through him, Nelson Rockefeller. Section 3 is the voluntary, temporary transfer: the President writes a letter, the Vice President becomes Acting President, the President writes another letter, and power returns. It has been formally invoked four times—twice by George H. W. Bush, once by George W. Bush, once by Joseph Biden in November 2021—always for routine sedation. Reagan’s 1985 colon surgery transfer was, characteristically, hedged: Reagan’s letter pointedly declined to concede that Section 3 actually applied, even as he followed its procedure to the letter.
Section 4 is where the questions lie, and Kalt devotes the bulk of his book to it. The mechanism is intricate by constitutional standards. The Vice President and a majority of the “principal officers” of the executive departments (or some other body Congress designates, though Congress has never bothered) transmit a written declaration of presidential inability to the President pro tempore of the Senate and the Speaker of the House. At that moment, not upon receipt, Kalt insists, but upon transmission, the Vice President becomes Acting President. The President may then transmit his own declaration that no inability exists and reclaim the office, unless the Vice President and cabinet majority counter-transmit within four days. If they do, Congress must assemble within forty-eight hours and decide the question by a two-thirds vote of each house within twenty-one days. Anything less than two-thirds in either chamber, and the President walks back into the Oval Office.
Kalt’s most important contribution is to insist, against a chorus of journalists and op-ed writers, that Section 4 was designed for a narrow medical or psychological condition—the Wilson stroke, the dementia case, the President in a coma after Hinckley’s bullet—and not for unfitness in the broader political sense. “Unable” is not “unwise,” “unpopular,” “dishonest,” “lazy,” or “dangerous to the republic.” The drafters considered and rejected language that would have reached such cases. They left “unable” undefined precisely because they wanted the political branches, not a definition, to police the line, and they trusted that the supermajority requirement would keep the line where they had drawn it. Kalt is firm: Section 4 is not a substitute for impeachment, does not preclude impeachment, and was never meant to do impeachment’s work.
He is equally firm about the procedural booby-traps. The Amendment never defines “principal officers,” a phrase that has aged badly in an era of acting secretaries and unconfirmed deputies. It assumes a Vice President in office, although Section 2 contemplates vacancies the filling of which could possibly take months. Most critically, the President can fire cabinet members at will, which means that any cabinet move under Section 4 must happen in absolute secrecy and at one stroke; a leak gives the President time to swap in loyalists and the declaration never gets transmitted. Kalt’s discussion of the 1987 episode—when Howard Baker, newly installed as Reagan’s chief of staff in the wreckage of Iran-Contra, sent aides to observe the President for signs of the disengagement that Donald Regan had described—is illuminating precisely because nothing happened. The aides reported the President alert and engaged, and the matter ended there. The bar, Kalt observes, is and ought to be very high.
The 1981 Reagan shooting receives a careful re-examination. With Reagan unconscious on an operating table and Vice President Bush returning by air from Texas, the cabinet gathered in the Situation Room and conspicuously did not invoke Section 4, partly because no one was sure how, partly because the political consequences of the first-ever invocation were in some sense terrifying. Alexander Haig’s televised declaration that he was “in control here” has lived in infamy as a constitutional howler, but Kalt is generous: Haig was reaching, clumsily, for reassurance during a vacuum the amendment ought to have filled and didn’t. The episode taught the political class that Section 4 was not, as a practical matter, available for sudden incapacitation—which is, ironically, the case it was most clearly written to handle.
Kalt resists the temptation, irresistible to many of his colleagues, to read recent political pathologies back into the text. Whatever one thinks of any particular President’s temperament, character, or judgment, Section 4 is not the answer if the President can still walk to the podium, sign the papers, and fire the cabinet. The remedy for political malfeasance is impeachment (which requires “Treason, Bribery or other high Crimes and Misdemeanors”); the remedy for political incompetence is the next election; the remedy for genuine medical or psychological inability is Section 4, and the genius of the amendment is that it makes the last of these workable without making the first two easier. One can quarrel with the line, but one cannot pretend the line isn’t there.
Kalt is a careful academic who does not follow his own logic to its bleakest conclusion. He acknowledges that Section 4 has a structural defect that may make it unusable in precisely the cases its drafters most feared: a President with the cunning to fire cabinet members at the first whisper of disloyalty can almost certainly defeat the procedure, because secrecy among more than a dozen senior officials is a Washington oxymoron. The amendment, in other words, works only against Presidents too incapacitated to defend themselves, the only category of President against which we ought to want it to work.
Unable is a short book on a narrow subject by a writer who knows the subject cold. It is also, in a quiet way, a defense of constitutional modesty: a reminder that the drafters in 1967 did not solve every problem of presidential governance and did not pretend to, and that the rest of us are obliged to use the political tools the Constitution gives us, even when we wish it gave us better ones. Anyone tempted, in any political season, to invoke the Twenty-Fifth Amendment as a deus ex machina would do well to read Kalt first. The machine is real, but it is narrow, and it was built for a different kind of trouble than the kind we usually have.
Brian C. Kalt, Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment (Oxford University Press, 2019)
Every constitutional crisis writes its own ghost story, and the one that haunts Brian Kalt’s Unable is the autumn of 1919, when a small cabal of wife, doctor, and secretary effectively governed the United States while a stricken Woodrow Wilson lay behind closed doors. Vice President Thomas Marshall, willing but unwanted, was kept at bay; Congress, paralyzed by the delicacy of the matter, did nothing. The country drifted, leaderless in fact if not in form, until Wilson’s term mercifully ran out. Kalt opens his slim, lawyerly book with this episode because it frames the question the Twenty-Fifth Amendment was eventually written to answer—and, as he persuasively argues, only partly succeeded in answering.
Before Wilson there had been Garfield, lingering eighty days between Charles Guiteau’s bullet on July 2, 1881 and his death on September 19, with the cabinet meeting at his bedside and the country’s business essentially suspended. The Presidential Succession Act of 1886, passed five years later, dropped the Senate president pro tempore and the Speaker of the House from the line of succession in favor of cabinet members; a 1947 Act, in a burst of postwar populism, put the Speaker and the president pro tem back on top, where a 1792 statute had originally placed them. None of this, Kalt is careful to point out, addressed the Wilson problem at all. We know the answer to the question of who governs when the President is dead or gone. Section 4 of the twenty-Fifth Amendment deals with Inability, a much harder problem, who governs when the President is still there but is “unable” do the job, whatever that means.
Kalt, a professor at Michigan State University College of Law, has made a career of unfashionable constitutional corners (his earlier book on presidential pardons was equally fine), and he brings to Section 4 the patience of someone who has actually read and thought deeply about the legislative history of this Amendment. The result is the best book in print on the subject: dry in the right way, generous to opposing arguments, and quietly devastating to the fantasy, regularly raised in television shows and by Hollywood, and revived in every administration since Nixon, that the Twenty-Fifth Amendment offers a back-door to impeachment for Presidents whom the political class has come to regard as intolerable.
The Amendment’s architecture is worth rehearsing because almost everyone gets it wrong. Section 1 confirms that the Vice President becomes President, not Acting President, on the death or resignation of the incumbent—settling a question that had technically been open since John Tyler’s self-promotion in 1841. At the time no one understood whether Tyler was an Acting President,” an interim president, or the real thing.
Section 2 fills a vice-presidential vacancy by presidential nomination and majority confirmation in both houses, the mechanism that gave the country Gerald Ford and then, through him, Nelson Rockefeller. Section 3 is the voluntary, temporary transfer: the President writes a letter, the Vice President becomes Acting President, the President writes another letter, and power returns. It has been formally invoked four times—twice by George H. W. Bush, once by George W. Bush, once by Joseph Biden in November 2021—always for routine sedation. Reagan’s 1985 colon surgery transfer was, characteristically, hedged: Reagan’s letter pointedly declined to concede that Section 3 actually applied, even as he followed its procedure to the letter.
Section 4 is where the questions lie, and Kalt devotes the bulk of his book to it. The mechanism is intricate by constitutional standards. The Vice President and a majority of the “principal officers” of the executive departments (or some other body Congress designates, though Congress has never bothered) transmit a written declaration of presidential inability to the President pro tempore of the Senate and the Speaker of the House. At that moment, not upon receipt, Kalt insists, but upon transmission, the Vice President becomes Acting President. The President may then transmit his own declaration that no inability exists and reclaim the office, unless the Vice President and cabinet majority counter-transmit within four days. If they do, Congress must assemble within forty-eight hours and decide the question by a two-thirds vote of each house within twenty-one days. Anything less than two-thirds in either chamber, and the President walks back into the Oval Office.
Kalt’s most important contribution is to insist, against a chorus of journalists and op-ed writers, that Section 4 was designed for a narrow medical or psychological condition—the Wilson stroke, the dementia case, the President in a coma after Hinckley’s bullet—and not for unfitness in the broader political sense. “Unable” is not “unwise,” “unpopular,” “dishonest,” “lazy,” or “dangerous to the republic.” The drafters considered and rejected language that would have reached such cases. They left “unable” undefined precisely because they wanted the political branches, not a definition, to police the line, and they trusted that the supermajority requirement would keep the line where they had drawn it. Kalt is firm: Section 4 is not a substitute for impeachment, does not preclude impeachment, and was never meant to do impeachment’s work.
He is equally firm about the procedural booby-traps. The Amendment never defines “principal officers,” a phrase that has aged badly in an era of acting secretaries and unconfirmed deputies. It assumes a Vice President in office, although Section 2 contemplates vacancies the filling of which could possibly take months. Most critically, the President can fire cabinet members at will, which means that any cabinet move under Section 4 must happen in absolute secrecy and at one stroke; a leak gives the President time to swap in loyalists and the declaration never gets transmitted. Kalt’s discussion of the 1987 episode—when Howard Baker, newly installed as Reagan’s chief of staff in the wreckage of Iran-Contra, sent aides to observe the President for signs of the disengagement that Donald Regan had described—is illuminating precisely because nothing happened. The aides reported the President alert and engaged, and the matter ended there. The bar, Kalt observes, is and ought to be very high.
The 1981 Reagan shooting receives a careful re-examination. With Reagan unconscious on an operating table and Vice President Bush returning by air from Texas, the cabinet gathered in the Situation Room and conspicuously did not invoke Section 4, partly because no one was sure how, partly because the political consequences of the first-ever invocation were in some sense terrifying. Alexander Haig’s televised declaration that he was “in control here” has lived in infamy as a constitutional howler, but Kalt is generous: Haig was reaching, clumsily, for reassurance during a vacuum the amendment ought to have filled and didn’t. The episode taught the political class that Section 4 was not, as a practical matter, available for sudden incapacitation—which is, ironically, the case it was most clearly written to handle.
Kalt resists the temptation, irresistible to many of his colleagues, to read recent political pathologies back into the text. Whatever one thinks of any particular President’s temperament, character, or judgment, Section 4 is not the answer if the President can still walk to the podium, sign the papers, and fire the cabinet. The remedy for political malfeasance is impeachment (which requires “Treason, Bribery or other high Crimes and Misdemeanors”); the remedy for political incompetence is the next election; the remedy for genuine medical or psychological inability is Section 4, and the genius of the amendment is that it makes the last of these workable without making the first two easier. One can quarrel with the line, but one cannot pretend the line isn’t there.
Kalt is a careful academic who does not follow his own logic to its bleakest conclusion. He acknowledges that Section 4 has a structural defect that may make it unusable in precisely the cases its drafters most feared: a President with the cunning to fire cabinet members at the first whisper of disloyalty can almost certainly defeat the procedure, because secrecy among more than a dozen senior officials is a Washington oxymoron. The amendment, in other words, works only against Presidents too incapacitated to defend themselves, the only category of President against which we ought to want it to work.
Unable is a short book on a narrow subject by a writer who knows the subject cold. It is also, in a quiet way, a defense of constitutional modesty: a reminder that the drafters in 1967 did not solve every problem of presidential governance and did not pretend to, and that the rest of us are obliged to use the political tools the Constitution gives us, even when we wish it gave us better ones. Anyone tempted, in any political season, to invoke the Twenty-Fifth Amendment as a deus ex machina would do well to read Kalt first. The machine is real, but it is narrow, and it was built for a different kind of trouble than the kind we usually have.
October 16, 2020
Really fascinating slim volume that is neither dry nor too scholarly to be inaccessible to a lay person.
October 12, 2019
Liking this book _Unable_ by Brian Kalt. It's about the 25th Amendment section 4 (which says that if a president is _unable_ to serve, the VP and Cabinet can have the VP step in and serve as Acting President). It's not a partisan book, it's just the facts. Author cites legal sources throughout, but the book is written simply and clearly for ordinary folks (non-lawyers). Key points:
* If you saw it in a movie or on TV, chances are the show got it wrong.
* The clause's clear purpose is not to remove a bad president, it's to make sure there always is a president.
* If impeachment applies, that's more appropriate and in fact easier.
* The Acting President serves temporarily not permanently. When the elected president is again able to serve, s/he takes over again, assuming the VP agrees.
* If the elected president contests the judgment of inability, the VP remains Acting President for the 4 to 27 days during which the question is decided.
* It remains unclear whether acting cabinet members (not confirmed by the Senate) count in the initial vote.
* If you saw it in a movie or on TV, chances are the show got it wrong.
* The clause's clear purpose is not to remove a bad president, it's to make sure there always is a president.
* If impeachment applies, that's more appropriate and in fact easier.
* The Acting President serves temporarily not permanently. When the elected president is again able to serve, s/he takes over again, assuming the VP agrees.
* If the elected president contests the judgment of inability, the VP remains Acting President for the 4 to 27 days during which the question is decided.
* It remains unclear whether acting cabinet members (not confirmed by the Senate) count in the initial vote.
Displaying 1 - 3 of 3 reviews