North Dakota never ratified the 25th amendment. Why?
An anonymous op-ed published last week in The New York Times claimed there were "early whispers" among President Donald Trump's advisers about trying to remove Trump from the presidency by invoking part of the 25th Amendment, an amendment North Dakota never ratified.
A look back at state legislative records from the time shows the proposal to ratify the 25th Amendment easily passed through a committee in the North Dakota Senate but hit a roadblock in the House, especially in the form of the late Kenneth Knudson, who declared it a "poor piece of legislation" and evidently set a tone that others in the House followed.
Dana Harsell, a political science professor at UND, said by the time the amendment was considered in North Dakota, it was already very likely that it would be passed by the rest of the states, so it wasn't necessary for North Dakota to join in.
"I think the interesting part is that the handwriting was on the wall that it was going to be ratified anyway," Harsell said.
The 25th Amendment is primarily used to clarify the presidential order of succession and was put in place in 1967, four years after the assassination of President John F. Kennedy. It can also be used to remove a president from office.
North Dakota is one of just three states to never ratify the 25th Amendment; the other two are South Carolina and Georgia. While a resolution in North Dakota was introduced at some point during the 1967 session, the legislation appears to never have been voted on and was postponed indefinitely by a committee in the House.
Adding an amendment to the U.S. Constitution requires a two-thirds passage by both houses in Congress. Ratification also requires approval by three-fourths of the states, which means it was never necessary for North Dakota to approve the legislation. At the time the Legislature took up the resolution, it had already been passed by 20 other states.
Legislative records show that when the resolution was introduced in North Dakota, a senator explained the intent of the resolution and noted it had already been passed by Congress and referred to the states. Sen. Robert Chesrown was documented as saying that it was a "good resolution."
The resolution passed out of a North Dakota Senate committee unanimously, but it was tripped up in the House. Rep. Knudson, a legislator from Taylor, N.D., at the time said he was against the ratification of the resolution because he felt it was a "poor piece of legislation."
"Section 4, he stated, is a bad one, a dangerous set up and he doesn't feel (North Dakota) has to give its consent," the legislative record reads.
Knudson, who died in 2009, requested an indefinite postponement and it appears the matter was not taken up again.
While the first three sections of the 25th Amendment are fairly straightforward and clarify how the transition of power should take place if the president dies or is unable to complete duties as president, the fourth section is more complicated. The fourth section provides a process for the president's cabinet—made up the vice president and other executive leaders—to declare the president is " unable to discharge the powers and duties of his office." It would allow the vice president to take power and serve as the acting president. It requires that a majority of the president's cabinet agree that the president is unable to discharge power. The process would then move on to Congress, and would require a two-thirds vote from both houses.
Harsell said sometimes when there's a strong opinion, like Knudson's, voiced in a legislative discussion it can carry weight for everyone else.
"Somebody could have had a strong objection and then there was really no reason to move on it," he said.
Although the anonymous author of the New York Times op-ed wrote there were "early whispers" within the cabinet about invoking the 25th Amendment, the process is complex.
"But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until — one way or another — it's over," the op-ed read.
The 25th Amendment isn't the only resolution not ratified by the North Dakota Legislature. According to usconstitution.net, North Dakota was the fourth state to ratify the 18th Amendment, which banned alcohol in the country, but it never agreed to the 21st Amendment, which repealed the 18th Amendment.
The 21st Amendment was ratified by constitutional conventions of the states.
North Dakota also never passed legislation regarding the 26th Amendment, which ensures all citizens 18 and older have the right to vote.
Harsell said there are many constitutional amendments introduced in Congress every year, but the process for approving them is long and rigorous, which is clearly what the founding fathers intended. It's also why, after more than two centuries, there are so few amendments.
"Since there's so few amendments that are put before the states, it's really difficult to draw any conclusions about how the state legislatures will respond," Harsell said.
The outright rejection or non-approval of amendments is not uncommon, Harsell said. Many states have approved amendments and then rescinded that approval later. Others have taken decades to ratify an amendment, such as Mississippi, which took more than 100 years to ratify the 13th Amendment, which prohibits slavery. The amendment was proposed in 1865 but was not ratified by Mississippi until 1995. The state failed to alert the U.S. archivist until 2012, when the ratification finally became official.