Image for post
Image for post

The 25th Amendment does not provide for the removal of the president from office.

A lot of people are aware that the 25th Amendment exists, but most people apparently do not know what it says. In section four, it allows the vice president and a majority of cabinet members (or another body that Congress may create, but it has not) to declare that the President “is unable to discharge the powers and duties of the office,” and notify the leaders of Congress of the situation, at which point the vice president assumes those powers and duties and becomes “Acting President.”

Whoever wrote this should hang his head in shame. This is legal nonsense. The law, in some sense, is nothing but a set of definitions. It defines what “murder” is and defines that conduct as illegal. Modern statutes typically start with a set of definitions. The Constitution itself is, in some sense, just the definition of the government of the United States, what it consists of and how it should operate.

To insert a term of the magnitude of “Acting President,” which appears nowhere else in the Constitution and is nowhere else defined in U.S. law was a very, very bad idea.

The quotations above come from the fourth section of the Amendment. The first section just provides that, in the event of the “removal” of the president, the vice president shall become president. This is how we’ve always done it, so nothing new here.

Section two allows the president to choose a new vice president, on the removal of the sitting vice president, upon majority vote confirming the choice in both Houses of Congress.

Section three allows the president voluntarily to relinquish the “powers and duties” of the office and to regain them by his own choice. Ronald Reagan exercised this option in 1985 when he underwent surgery, assigning the powers and duties to Vice President Bush for roughly eight hours and reclaiming them once he was awake and alert (!) after surgery.

Section four is the one people want Vice President Pence to invoke to relieve Trump of the powers and duties of the office. Except that too many people assume that this provision would have the effect of removing Trump from office. In terms of the rest of the Constitution, this is not unreasonable. Most people are also aware that the body of the Constitution as the Founders wrote it includes a provision for removing the president for criminal activity through impeachment. We should pursue this method of removing Trump.

But removal through impeachment is a very blunt instrument. Part of the penalty is a prohibition on ever holding public office in perpetuity, which it does not say, but clearly means.

Looking at section four of Amendment 25 in light of section three, it seems clear that the authors of the Amendment were thinking in terms of temporary disabilities, as when Reagan had surgery. Much as many people might have wanted him to leave office, undergoing surgery is not a good reason to remove a president, especially now, when people routinely undergo surgery with no long term ill effects. Presumably, had some national emergency (a real one) erupted while Reagan was under anesthetic, vice president Bush would have handled it, likely better than Reagan himself, even without the formality of the 25th Amendment, but being explicit about such things is not a bad idea.

The key differences in section four are that it allows the vice president to initiate the transfer of power, and it allows the president to dispute the claim that he is unable to discharge the powers and duties. If the vice president moves to relieve the president, the president may notify the leaders of Congress that he actually remains able to do the job. If after that, the vice president again claims that he is not able, then Congress has to decide, with a two thirds majority in both houses required to sustain the decision to relieve the president.

That is, the 25th Amendment, section four, creates the possibility of a cage match between the president and the vice president, with Congress as referee.

So section four seems to contemplate a temporary inability by the president to function. As with the Constitution as a whole, clearly no one ever expected anyone as crazy and stupid as Trump to become president. Presumably, if Pence does relieve Trump, he will contest the decision, and it’s at best an open question if the Senate would vote to uphold Pence’s decision. The House might not even be able to muster a two thirds vote in favor.

Even if they did, assigning the “powers and duties” of the president to Pence as “Acting President” leaves a lot of leeway for fights between Trump and Pence. Who gets to live in the White House? That is neither a power or a duty of the president, although deciding who gets to live there might be a power. It’s a question that has never come up. Who gets to fly on Airforce One? Given that the defining feature of Donald Trump is his ego, he might well hold fast to whatever symbols of authority he can. It is not inconceivable that Pence does not want to put himself into that position.

More directly, at the moment, it is simply not the case that Trump is unable to discharge the powers and duties of the office. A lot of us don’t like how he’s doing it. A large group of mental health professionals has signed a petition that reads, in part:

“We, the undersigned mental health professionals, believe in our professional judgment that Donald Trump manifests a serious mental illness that renders him psychologically incapable of competently discharging the duties of President of the United States. And we respectfully request he be removed from office, according to article 4 of the 25th amendment to the Constitution, which states that the president will be replaced if he is ‘unable to discharge the powers and duties of his office.’”

They are mental health professionals, not Constitutional scholars, so we may forgive them for making the very mistake that we are addressing here — the 25th Amendment does not “state[]that the president will be replaced” in the event of inability. Again, it provides for relieving him of the powers and duties of the office, not replacing him, unless designating Pence “Acting President” constitutes replacing, which is very much an open question, since that term lacks all definition and we have no historical precedent at all.

This is a political decision. Mental health professionals have the same right as anyone else to hold and express their political opinions, and of course they will likely bring their professional training to bear on such decisions. They have a particular definition of unfitness that rests on their professional assessment of the president’s mental health. We should take their opinions in this matter seriously, but Mike Pence is under no legal obligation to listen to them. Again, he may very well wish to avoid instigating a cage match with Trump.

So, at the moment, impeachment looks like a more viable way of ridding ourselves of Trump as pretend president than the 25th Amendment.

Written by

Uppity gay, Buddhist, author, historian.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store