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Don’t Test the 25th Amendment on Donald Trump

We feel as though Donald Trump has caused us to become familiar with the 25th Amendment. What’s the real story behind this much-discussed “fix” to the current presidency?

Spotting a problem in the nuclear age

In 1960, the American Bar Association made a little-noticed recommendation to Congress. Outgoing President Dwight Eisenhower suffered two heart attacks while in office. After one, he took weeks to recover. The ABA spotted a problem: What would happen if the President was incapacitated, but still alive? The text of the Constitution was ambiguous, but in the nuclear age, it could be critically important.

It wasn’t only Ike’s heart health that was of concern. Just 15 years previously, President Franklin Delano Roosevelt’s prolonged illness extended over the months and years preceding his death. In 1919, Woodrow Wilson suffered a stroke and spent most of the rest of his term effectively as an invalid — a fact that was kept secret from the vice president, the cabinet, and Congress by First Lady Edith Wilson. And In 1881, and again in 1901, presidents who had been shot were in critical condition for weeks until finally succumbing to their wounds.

The ambiguity of the Constitution’s original wording had already caused problems before. When the nation’s ninth President, William Henry Harrison, died of pneumonia just a month into his term, it was at first unclear if Vice President John Tyler had become president or merely acting president. Tyler was firm that he was the president, and refused to open letters addressed to acting president. Congress confirmed Tyler’s interpretation, which is the precedent in the case of death in office.

Accounting for disabilities

The President’s disability, however, remained unprovided for. In the 1950s, then-Vice President Richard Nixon presided over cabinet meetings while Eisenhower was recuperating. But that was informal. Vice President Nixon had no authority to sign bills, issue orders, or otherwise wield the powers of the presidency.

The ABA’s proposal in 1960 was an academic concern that gained new urgency with the assassination of President Kennedy in November 1963. What would have happened if Kennedy had survived those first few hours in an incapacitated state? Would the Vice President have been able to respond to a nuclear strike, for example?

Further, Johnson himself was in poor health and suffered from heart disease. And there had never been a mechanism to fill a vacancy in the vice-presidential office. Previously, it had simply remained vacant until the next election. The next two individuals in the line of succession after Johnson were 71-year-old Speaker of the House John McCormack, and the 86-year-old Senate President Pro Tempore Carl Hayden. It was all uncomfortably precarious.

A Constitutional fix

Congress answered was the 25th Amendment. Proposed in 1965, it was ratified by the requisite three-fourths of the states in two years. The amendment contains four sections:

Section 1 codified the Tyler precedent: In the event that the president dies, resigns, or is removed from office, the vice president shall become president.

Section 2 provided a mechanism for the president to appoint a new vice president, and have that choice ratified by both houses of Congress. Exhibit A: Gerald Ford.

Section 3 allows for the president to declare himself temporarily incapacitated and transfer power to the vice president. Both Ronald Reagan and George W. Bush would later use this power when they underwent minor medical procedures requiring sedation.

Section 4 is the one provision that has never been used. This is the “president in a coma” provision. It provides that, in the event that the president is “unable to discharge the powers and duties” of his office, the vice president and a majority of the cabinet can formally inform Congress of the disability. The vice president immediately becomes acting president.

This last section has long provided fodder for fictional drama. The television show 24 made repeated use of it for high-stakes tension. It was also featured in an episode of The West Wing and the movie Air Force One. The appeal to writers is easy to see: This otherwise obscure constitutional provision enables a legal coup d’etat by the vice president.

Inside the mind of Donald Trump

With each new outburst and misstep by Donald Trump, many wonder if he is not just bombastic and vulgar, but also mentally unsound. And that leads to persistent talk about the 25th Amendment.

But while Vice President Mike Pence has relatively few admirers outside of the Republican base, but he is reassuringly boring and predictable.

Could we wake up one morning to find that the cabinet has given us Acting President Pence?

The 25th Amendment even seems to envision the scenario where the president disputes the claim of disability. It provides a procedure for Congress to decide. That would imply scenarios more borderline that a president medically incapacitated to the point of being uncommunicative, because it requires the president to inform Congress that he disputes the claimed disability.

Impeachment is the better option

But the 25th Amendment is not a quick fix. It doesn’t actually remove the president from office. Under this scenario, Trump would still be the president and could even continue to live in the White House. Pence would continue to be vice president pulling double duty as acting president. Trump would have no powers, but would still get the title and the perks. Heck, he might even prefer that arrangement!

More importantly, invoking the 25th Amendment is harder than good old-fashioned impeachment. If the president disputes his disempowerment, it would take a two-thirds vote of both houses of Congress to prevent him from taking over again. And, to invoking the 25th Amendment in the first place, Vice President Pence would require a majority of the cabinet – which serves, of course, at the pleasure of the president.

Impeachment, by contrast, takes only a simple majority in the House, plus two-thirds of the Senate. And, impeachment and conviction by the Senate removes the president for good. And the grounds for impeachment are more liberal: He may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” And that last phrase – “high Crimes and Misdemeanors” – means whatever 218 members of Congress thinks that it means.

It’s time to leave the 25th Amendment to novelists and screenwriters. Those who want Trump’s exit from the White House should focus on pursuing the Constitutional option more clearly fitted to the task: Impeachment.

(Caricature of Donald Trump by DonkeyHotey used with permission.)


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