Pleading the 25th

The last two weeks, we can all agree, was crazy for American politics. Also crazy is that the word "impeachment" is beginning to be used more seriously and has been called for from the House floor. Even Nate Silver, the prediction guru behind FiveThirtyEight.com, puts the odds at 50% that President Trump won't serve his entire term, either because of impeachment or resignation.

But another Constitutional provision to remove the president from office has been getting some attention lately.

The 25th Amendment.

Text of the 25th Amendment.  

It was adopted in 1967 to clear up confusion surrounding presidential succession, but the part that people have been looking at these days is Section 4. It allows the vice president and the cabinet to declare the president unfit for leadership:

"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."

The other three sections of the amendment - which deal with presidential succession, vice presidential succession, and the president him/herself declaring incapacitation - have been used:

• On December 6, 1973, Gerald Ford succeeded Spiro Agnew, who had resigned in October, as Vice President. When President Richard Nixon resigned on August 9, 1974, the 25th Amendment was again invoked and Ford ascended to the presidency.

President Richard Nixon announces his resignation, August 8, 1974.  CBS

• On December 19, 1974, Nelson Rockefeller succeeded Ford as Vice President.

Nelson Rockefeller takes the oath of Vice President on December 19, 1974.  AP

• On July 12, 1985, President Ronald Reagan underwent surgery to remove a pre-cancerous legion. He temporarily transferred power via Section 3 to Vice President George H.W. Bush.

President Ronald Reagan.  White House

• On June 29, 2002 and again on July 21, 2007, President George W. Bush underwent colonoscopies, transferring power via Section 3 to Vice President Dick Cheney.

The White House press briefing of President George Bush's second colonoscopy and his transfer of power to Vice President Dick Cheney.  AP

But Section 4 has never before been invoked. If it is, the president has a way to fight back, making the next part of Section 4 a bit messy. In summary:

1. The president can send a note to Congress saying he/she is just fine.
2. If the VP and cabinet still feel the president is unfit, they have four days to send another declaration.
3. Both houses of Congress have 48 hours to convene, then 21 days to vote. If it's two-thirds against the president, the VP "shall continue to discharge the same as Acting President" (which means the VP has been in charge during the whole process). If not, the president gets his/her job back.

As with anything in the Constitution, that's an intentionally high bar to hit. Should Vice President Mike Pence and the Trump cabinet try anyway? Political pundits' views are mixed.

Ross Douthat of the New York Times thinks they should:

"[Trump] has not endured an assassination attempt or suffered a stroke or fallen prey to Alzheimer’s. But his incapacity to really govern, to truly execute the serious duties that fall to him to carry out, is nevertheless testified to daily — not by his enemies or external critics, but by precisely the men and women whom the Constitution asks to stand in judgment on him, the men and women who serve around him in the White House and the cabinet."

Marshall Tanick, a constitutional law attorney writing for the Star Tribune, agrees:

"This may be the occasion to try, for the first time, a temporary hiatus under the 25th Amendment that would allow [Trump] some time off. . . . The respite might allow him to regain any equilibrium he once may have had and return anew to D.C., refreshed, revitalized and ready to resume the presidency. Or, it could lead him to declare that others should take the job and do what he has been doing to the nation: Shove it!"

Vice President Lyndon B. Johnson takes the presidential oath on Air Force One, on November 22, 1963.

Others think invoking the amendment is misguided. Jonathan Bernstein writes in Bloomberg that invoking the amendment sets a bad precedent:

"Suffice it to say that there is surely sufficient misconduct here to serve as a valid pretext should Congress believe that [impeachment] is necessary. No ugly new precedent would be established; no norms would be shattered. No future president would be given any additional reason to fear being deposed just because his or her cabinet decided they preferred the vice-president, and therefore no future president would have to choose them with that fear in mind."

And Jennifer Rubin of the Washington Post argues that we shouldn't make President Trump a medical case:

"We should not medicalize amoral, stupid and/or illegal behavior. We don’t consider people to be incapacitated because they are terrible bosses or rotten to their family, or embark on inane criminal enterprises. In the political/legal realm, designating someone as 'unable to discharge their duties and powers' removes their culpability, making them into helpless victims. Trump might act 'like' a child, but infantilizing him is not the solution."

What's interesting is that both sides are not arguing that the president should not be removed, only that one method is better than the other.

What do you think? Should the 25th Amendment be invoked in this situation?

Join the conversation by leaving a comment, then share this with others.

(And for levity's sake, a report on the presidency of Dick Cheney.)


I am currently working on a book about Ah Toy, the first Chinese brothel madam in gold rush San Francisco.

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