How the 25th Amendment really works
It’s clear that increasing numbers of people in Washington, D.C. are prepared to remove Donald Trump from office. This group includes Republicans as well as Democrats, members of Congress, and Trump’s Cabinet members.
Robert Reich’s interesting tweet the other day is a good example. It suggests the mood in the cloakrooms of Capitol Hill: dark, deeply pessimistic, scared about an unhinged, isolated Trump, “hating everyone in the White House,” “unraveling” before everyone’s eyes. Yet with Impeachment a near-certain impossibility given the tea party dominance in the House of Representatives (where such proceedings Constitutionally must begin), that leaves only one option: the 25th Amendment.
Much is being said about this strange, little-known section of the Constitution, which was adopted in 1967. The Amendment’s key part, as far as removing Trump from office is concerned, is Section 4. It outlines the steps that must be taken. Here is a summary, with the names of the relevant players.
The first thing that has to happen is that “the Vice President” (Michael Pence) “and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” must “transmit to the President pro tempore of the Senate” (currently Orrin Hatch) “their written declaration that the President is unable to discharge the powers and duties of his office.” Upon that occurrence, “the Vice President shall immediately assume the powers and duties of the office as Acting President.”
Lots to break down in this rather sweeping statement. Note that the participation of the Vice President is mandatory: he must initiate the removal process. But he cannot do it alone: he has choices as to the others he needs for the process to go forward. One possibility is the acquiescence of “a majority of the principal officers of the executive departments.” That would be the Cabinet. There are currently 15 such executive departments. In other words, if eight Cabinet secretaries joined forces with the Vice President, that would be enough to sign the “written declaration” to Orrin Hatch, which statutorily would result in the “immediate” removal of the President.
Are there eight Cabinet secretaries who would play along? We can only speculate, of course. If things continue to deteriorate in the White House—Trump’s mental state, his alarming tweets, his inconstancy and impulsiveness, the threat of World War III, his insults to them—the following Secretaries may be the most likely to support Pence’s invocation of the 25th: Tillerson (State), Mnuchin (Treasury), Mattis (Defense), Perry (Energy), Ross (Commerce), Acosta (Labor), McMaster (NSA) and Chao (Transportation). That’s eight. I think that the most far-right deplorables in the Cabinet, such as Ben Carson and Betsy DeVos, would never oust their leader; but their approval would not be necessary. All it would take is Pence plus The Eight, and Trump is out of a job.
But, as I pointed out above, Pence (remember, he has to initiate the process) has another choice, besides the Cabinet: if he thought he couldn’t round up eight Secretaries, he could turn to “Congress” instead. But who in Congress does the Constitution empower with such an awesome duty? After all, there are 535 members. In this respect, Section 4 is unclear. The way the words read, it sounds like “a majority of…the principal officers of…Congress” could do it. Who are the “principal officers” of the Congress? This is not spelled out. However, they presumably include, at the very least, the Speaker of the House (Paul Ryan), the House Majority Leader (Kevin McCarthy), the House Minority Leader (Nancy Pelosi), the Senate Majority Leader (Mitch McConnell), the Senate Minority Leader (Chuck Schumer) and good old pro tempore Orrin Hatch.
Reading that list, it’s not hard to imagine a majority of them, perhaps all of them, siding with Pence, were Pence to invoke the 25th, which he wouldn’t do unless he had a good idea, before-hand, that he could get away with it. The problem is the vagueness of Section 4’s wording. Recalcitrant Republicans, particularly tea party House members (especially the Freedom Caucus) might challenge the “principal officers” and argue that they (the principal officers) do not fairly represent the sentiment in Congress, and perhaps Whips, committee heads and others ought to be included. They could make a lot of noise and create a lot of obstructionism, and then we’d be in uncharted waters.
There’s a further complication: Clause 2 of Section 4 gives the President a right of appeal: Although he had been “immediately” removed from office upon the transmission to Hatch of the necessary paperwork, that does not mean he must go quietly into the night. He, too, may “transmit to the President pro tempore…his written declaration that no inability exists.” In that case, amazingly, “he shall resume the powers and duties of his office.” Following that, Section 4 spells out various deadlines for various steps to be enacted; the bottom line is that “Congress shall [eventually] decide the issue.” That is all 535 members; a vote to remove would require “two-thirds…of both Houses” (i.e. House of Representatives and Senate). If things get this far, it’s completely unknowable if two-thirds of the House would vote to remove Trump from office (although I think two-thirds of the Senate might).
Would Trump appeal? Without doubt. He then would re-assume his “powers and duties” pending the final Congressional vote. Can you imagine Trump’s state of mind if things go that far? His paranoia would be greater than ever, his hatreds more powerful, his grievances heightened, his resentments boundless. And he would still have his small hands on the nuclear football. That scenario is almost impossible to fathom, and yet, we could find ourselves there pretty fast.
Have a lovely weekend! And to my friends in the fire zones, we are there for you. Be safe.
” In this respect, Section 4 is unclear. The way the words read, it sounds like “a majority of…the principal officers of…Congress” could do it.”
Pretty sure you’re misreading this. Breaking down the text (numbers and letters and emphasis added by me):
“Whenever (1) the Vice President and (2) a majority of either (a) the principal officers of the executive departments or (b) of such other body as Congress may by law provide, (3) transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration ….”
So for involuntary removal, you need (1) the VP, plus a majority of (2a) the Cabinet or (2b) whatever other group Congress designates by passing a law assigning that authority to it.
In other words, by default it’s VP + majority of cabinet, unless and until Congress passes a law creating another alternative to the cabinet.
Your interpretation that it can be a “majority of … the principle officers of… Congress” doesn’t make any sense textually. You’re either ignoring the “such other body” phrase, or else you’re interpreting it as some vague suggestion, as if the amendment says, oh, somebody else like I dunno Congress — which isn’t how Constitutional amendments are written or interpreted.
You’re also overlooking the “may by law provide” part. Congress has never exercised its authority to empower some other body to make a 25th Amendment declaration. There have been proposals floated for what such a body might look like: a committee of physicians and psychiatrists, or a group of “elder statespeople” such as former presidents, but no such bill has ever been passed.
I suppose Congress could name itself or certain Congressional leaders as the alternative body under the 25th, but it has never done so. That would seem like a poor choice structurally, given that Congress has to act as the “appeals court” in a disputed matter, but it’s a moot point for now anyway.
I’m having a weird sense of deja vu here; I feel like we’ve had this discussion before. If you don’t accept my reasoning, do some research on this — I have literally never heard anyone argue your interpretation before, and for obvious reasons the 25th Amendment has been getting a lot of attention recently.
Incidentally, the 25th Amendment has a couple of legitimate flaws as it is. By requiring the VP’s participation, and not making any provision for going down the line of succession if the VP office is vacant or the VP is incapacitated, there is the potential for paralysis if, say, an attack leaves the president comatose and the VP dead or incapacitated.
There’s also the weirdness of having the Cabinet be involved given that the President has the ability to fire them. What happens if the VP is quietly rounding up Cabinet signatures on a declaration, but asks the wrong person who squeals to the President, who promptly fires everyone in sight before the requisite number is reached and delivered to Congress?
Jim B: I’m sure my interpretation is faulty, but this just underscores how disputatious (I love that word) things will get in D.C. if anyone does try to use 25. And of course your last comment is apropos. I noted, however, that you didn’t say anything about Trump’s right of appeal, and resuming his powers even after 25 is launched. Do you agree? Anyhow, there are so many opportunities for firestorms, it boggles the mind!
Steve,
No, actually, I missed that bit in your post. (And my previous comment was long enough anyway!) I think you’re misinterpreting, though on this point I’ll concede that the amendment is not a model of clarity:
Let’s start with this part of 25th Amendment, Section 4 (all emphasis mine):
The “shall resume” clause is conditioned by the “unless” clause. So when the President tells Congress that he is capable, the VP and Cabinet have four days to contest that statement. In the meantime, the VP continues to act as Acting President. That’s not 100% clear from the above — I suppose you could interpret it as the President regains his powers upon transmitting the letter, then loses them again upon the VP contesting it, though that’s an illogical way to do things — but I think the rest of Section 4 makes that clear:
So, while Congress deliberates, the VP remains Acting President, and the President only regains his power if (1) the 21 days pass, and (2) Congress has not found a disability by 2/3 vote of both houses.
Honestly, what all this says to me is that Section 4 of the 25th Amendment is really not something you want to rely upon. It’s intended to cover situations like Woodrow Wilson’s stroke, where a President is not dead but is incapacitated or mentally compromised to such an extent that he or she cannot voluntarily relinquish power under Section 3 of that Amendment. In a pinch, it could be used to address a President who has become demented or deranged. But it’s really not supposed to be a back-door quickie impeachment proceeding.
Sure, I agree wholeheartedly that Trump is unfit for office — but I thought that on Election Day, too. If the electorate (and yes, I know, he didn’t get a majority of the popular vote, but those were the rules everybody was playing by) didn’t reject him, I think as a matter of sound Constitutional practice it would be bad to have Congress override that determination unless there was really compelling new evidence of disability. And honestly, hasn’t everything we’ve learned about Trump post-Election Day just been more confirmation of what was obvious all along?
Anyway, it’s all a moot point as a practical matter. Pence is a poodle, and he knows that whatever political future he may have is linked to Trump. Barring a truly extreme scenario, he isn’t going to make such a power play as invoking the 25th would require. And one of the reasons why he wouldn’t is that Congress wouldn’t back him. This Congress isn’t willing to even initiate impeachment hearings. Impeachment only requires a majority of the House (conviction requires 2/3 of the Senate). Hell, the House won’t even provide meaningful OVERSIGHT of this Administration.
Literally the only scenario I can imagine is the one where Trump is demanding the launch codes and trying to start a nuclear war, as opposed to just risking one with his inflammatory rhetoric.