Section four of the Twenty-Fifth Amendment specifies a process by which the vice president, with a majority of cabinet officers, may relieve the president of the “powers and duties” of the office and assume them himself as “acting president.” If this occurs, the president may then recover those powers and duties by notifying the same members of Congress as the vice president notified in removing them. If the difference of opinion about the president’s fitness persists — if the president and vice president continue to disagree on the president’s fitness — then Congress has to decide, with a two-thirds majority necessary to continue the removal of the powers and duties from the president.
In procedural terms, this looks a lot like the rest of the Constitution. Who else could initiate this process other than the vice president? S/he should have a large say in whether to assume the powers and duties of the president at the expense of the president. The vice president and cabinet members are in the best position to make this momentous decision. The White House staff likely interacts with the president more often and more extensively than cabinet members, and even than the vice president, but this is not the sort of decision one wants staffers to make. Presumably, in the event of an incompetent president, the vice president and cabinet members can find out what they want to find out about the situation.
The two-thirds super majority in Congress is a device the Constitution uses in other situations — it is the threshold for Congress to override a veto by the president of a bill Congress has passed, and it is the threshold for passing a proposed amendment to the Constitution.
The problem with section four is that it is maddeningly vague about two key points: what constitutes inability for purposes of the amendment, and what is an “acting president”? Ronald Reagan voluntarily relinquished the powers and duties to George H.W. Bush when he underwent surgery, but he recovered the powers and duties as soon as he was able after the surgery. Obviously, a man who is under anesthesia for surgery is incapable of exercising the powers and duties of the office. The Amendment itself says, “is unable to discharge the powers and duties of his office….”
Perforce, this does not apply to Donald Trump at the moment. The problem precisely is that he is entirely capable of using the powers of the office. The duties is a more difficult question, if one includes among them the duty to console the nation as a whole in the aftermath of a tragedy, which Trump seems constitutionally incapable of doing. Such duty, if it exists, is obviously far less important than the power to sign executive orders that cause small children to suffer separation from their parents, to take one particularly egregious example, or to appoint justices to the Supreme Court.
One could choose to define “ability” in terms of approval rating — if the president’s approval rating falls below a certain threshold for a certain period, then we can say that the way in which he is using the powers of the office do not meet with the approval of the people who hired him, so we should be able to fire him. Obviously, that’s not what the amendment itself says, and there is no reason to think that Pence, in the present instance, would adopt such a rule.
So, on a plain reading of the language of the Amendment itself, it does not currently apply to Donald Trump, much as we might wish it did.
In contrast, the body of the Constitution offers more specific guidance on reasons to remove the president, or any other federal official, via impeachment: conviction of “treason, bribery, or other high crimes and misdemeanors.” This is the eternal conundrum of the law. The law is nothing but a set of definitions, from one perspective. The law defines what conduct will result in reprobation by the larger society. Inevitably, of course, reprobates will try to avoid their just desserts by using verbal confusion and the capacity of human language to allow for descriptions of things and events that differ from what actually is or happened. Legislators go to great pains to define crimes, but it is never possible to anticipate every future fact pattern, so there is always some wiggle room.
So, during the impeachment of Bill Clinton, much discussion occurred about what exactly constituted a “high crime” or a “misdemeanor” for purposes of removing an official via impeachment. Certainly, obstruction of justice, the most serious charge against Clinton, should qualify, especially by the president, who is in some non trivial sense the nation’s chief law enforcement officer, having ultimate command of all of the various law enforcement agencies the federal government operates.
But there were terms to discuss. The Twenty-fifth amendment offers only the entirely nebulous “unable.” Pence is not obviously wrong or lying if he says that Donald Trump is fully able to discharge the powers and duties (?) of the presidency. We the people, of course, are always free to offer and plump for our own definitions, but we have no way to force Pence to adopt anything we come up with, short of another amendment to the Constitution, which certainly will not happen in the immediate future.
The other huge, obvious failure in Section Four is that nowhere in U.S law is there any definition of “acting president.” Note that, unlike removal via impeachment, this does not require the removal of the president from office. Although he chose to resign rather than face trial in the Senate, we can imagine that President Ford was quite happy to see newly former President Nixon fly away on Marine One, leaving Ford alone to be president.
Trump being Trump, one can easily imagine him continuing to insist on using the Oval Office, leaving “acting president Pence” to his office in the Old Executive Office Building. Pence would still have the power to sign bills and executive orders and otherwise discharge the “powers and duties” of the presidency, but having Trump still in town being his usual loud self would make being “acting president” very difficult. Who gets to use Air Force One? One supposes decisions about its use are among the powers of the presidency, but it might come down to a fight. It is not beyond imagining that Trump could sue Pence over the exact limits of the “powers and duties” of the “acting president.”
Designating the vice president “acting president” after an involuntary declaration of inability in the president without any definition of the term was an act of legislative malpractice.
So the Twenty-fifth Amendment is certainly no panacea for what ails us with the Trump presidency, but we may well choose to dive in and define as we go. At the moment, it’s hard to imagine how the situation could get worse.