President Trump

Will The 25th Amendment Take Trump Down?

For those of you who do not feel like reading a break down of constitutional law, I can give you the short answer: it is incredibly unlikely. However, some political pundits and journalists are still claiming that the 25th Amendment ought to be invoked.

Why was the 25th Amendment created?

Prior to getting into the details of the 25th Amendment, it is important to understand the context behind it. As written by Cornell Law School’s Legal Information Institute (LII), the 25th Amendment was originally proposed by Congress and later ratified by the states following the shocking assassination of President Kennedy, and it became highly relevant in political discourse when it was used multiple times in the 1970s after President Nixon’s Watergate scandal.

Given its late addition to the Constitution, the 25th Amendment has obviously not been a part of federal politics for the majority of American history; nevertheless, the questions that the amendment address have often come up throughout our nation’s existence.

The Congressional Research Service (CRS) offers the following background information on the amendment:

The Twenty–fifth Amendment was an effort to resolve some of the continuing issues revolving about the office of the President; that is, what happens upon the death, removal, or resignation of the President and what is the course to follow if for some reason the President becomes disabled to such a degree that he cannot fulfill his responsibilities? The practice had been well established that the Vice President became President upon the death of the President, as had happened eight times in our history.

[However] seven Vice Presidents had died in office and one had resigned, so that for some twenty per cent of United States history there had been no Vice President to step up. But the seemingly most insoluble problem was that of presidential inability—Garfield lying in a coma for eighty days before succumbing to the effects of an assassin’s bullet, Wilson an invalid for the last eighteen months of his term, the result of a stroke—with its unanswered questions: who was to determine the existence of an inability, how was the matter to be handled if the President sought to continue, in what manner should the Vice President act, would he be acting President or President, what was to happen if the President recovered. (emphasis added)

President Trump vs The 25th Amendment

The following is a bullet-point list of how the 25th Amendment answers the questions discussed in CRS’s breakdown, and, as stated above, those who are ardent advocates of Trump’s removal may not find the answers that they are seeking.

  • Section 3 of the amendment states the following:
    • “Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”
      • In plain English, section 3 means that Vice President Pence can become president if the President pro tempore of the Senate (Orrin Hatch) and the Speaker of the House of Representatives (Paul Ryan) receive a letter from President Trump stating that he is unable to continue to serve. Anybody that knows the slightest bit about Trump’s personality can easily foresee the slim probability of this situation arising.
  • Section 4 of the amendment accounts for situations in which the president does not transmit a written declaration of his/her inability to serve. The first portion of section 4 describes an alternative method of removal in the following manner:
    • “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.”
      • In short, an alternative means of removal can commence if Pence and a majority of President Trump’s Cabinet (or a body established by Congress) send a letter to Senator Hatch and Representative Ryan stating that Trump is unfit to serve. In such a scenario, Pence would become president as long as Trump does not counter the initial written declaration.
  • The remainder of section 4 explains what happens if the president maintains that he/she is still fit for the White House despite the beliefs of the vice president and the president’s cabinet/a body established by Congress:
    • “Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”
      • Put simply, if President Trump were to write his own letter to Senator Hatch and Representative Ryan denying the assessment of Pence and a majority of his cabinet (or a body established by Congress), then he would once again become president. However, if another letter is sent by Pence and a majority of Trump’s cabinet (or a body established by Congress) again denying Trump’s fitness to serve, then the determination must be made by Congress. If two-thirds of both the Senate and the House of Representatives vote that Trump is unfit, then Pence becomes president, otherwise Trump will stay in office.

To summarize, the 25th Amendment’s power to remove the president has two pathways to Trump. Either Trump can decide for himself that he is unfit for office, or Congress must take part in a burdensome process that requires a higher level of votes than impeachment proceedings.*

Given the current status quo in D.C., for those who believe that President Trump needs to be removed from the White House, I would suggest expressing such a desire through the ballot box as opposed to expressing it through invocations of the 25th Amendment.

*While the impeachment process also requires a 2/3 vote of the Senate to be completed, it needs only a simple majority vote of the House to commence

Deep Dives are intended to be detailed analyses of specific legal questions/court cases. This article should not be read to imply that the president ought to be removed, rather it is a hypothetical analysis of how the 25th Amendment could take part in such a removal process. Please feel free to contact me through the tab above with any further questions.

JG

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