The 25th Amendment Won't Solve the Trump Problem
If you have much contact with President Trump’s most fervent foes on social media, you might have heard them questioning Trump’s sanity and calling for Congress to use the 25th Amendment to remove him from office. But regardless of what you think about Trump’s mental state, such 25th Amendment pleas are off base. Not only do they get basic details wrong, they overlook some important reasons why the 25th Amendment is not a viable solution today. Start with the mistaken details. First, Congress does not invoke the 25th Amendment. Under Section 4 of the Amendment, the vice president and Cabinet are tasked with declaring when the president is disabled (“unable to discharge the powers and duties of his office”). Congress has no role in this initial step.
Second, a Section 4 declaration does not remove the president from office. The vice president only becomes acting president. The president is still president and Section 4 provides a process for him to retake power. If the president declares that he is able to discharge his powers and duties, the vice president and cabinet have four days to disagree. If they do not, the president takes power back after the four days. If they do disagree, the issue goes to Congress, which has 21 days to vote. Unless two-thirds majorities in both the House and Senate vote that he is “unable,” the president takes back his powers. Even if the president loses the vote, he can try again later.
The fact that the vice president stays in charge during the four-day waiting period is important. The text could have been written more clearly; many people—including neutral, learned commentators—have misread Section 4 as restoring the president’s power immediately. But Section 4’s drafting history makes it crystal clear that the president must wait. It is important for people to understand this; if the president purported to retake power immediately it could be disastrous. Having two people claiming to be president could get bloody.
But even with the four-day wait, the president’s ability to contest a Section 4 action and retake power means that it would not be useful against someone who, like President Trump, is conscious and able to communicate. Because the restoration process is stacked so heavily in the president’s favor, Section 4 only works well when the president is incapacitated. If the president is doing his job, just badly, that is a matter for impeachment, not Section 4.
At the moment, Congress does not appear interested in impeachment, which is one reason why so many Trump opponents talk about Section 4 instead. But this misses a key point: Section 4 is not supposed to be an end run around impeachment. Section 4’s creators realized that because a successful impeachment is hard to pull off, people might be tempted to classify a bad president as a disabled one. To prevent Section 4 from being abused this way, they made it even harder to pull off than impeachment.
Impeachment and removal require a majority in the House and two-thirds in the Senate. If you cannot get the votes for that, there is little reason to expect that you would get what Section 4 requires: all of those votes PLUS another 70-odd House members PLUS the vice president PLUS the Cabinet all lined up against the president. So if Section 4 requires a lot more consensus than impeachment and removal, and if Section 4 is temporary while impeachment and removal are permanent, when is Section 4 useful? In three situations, none of which we appear to be in.
First and most simply, the president could be incapacitated. Having a stroke is not an impeachable offense, after all. This is what Section 4 was primarily designed for.
The second possibility is political: Perhaps Congress wants to be rid of the president but is unwilling to make the first move. Members might find it more palatable to piggyback on a Section 4 action than to instigate an impeachment. But it seems unlikely that the vice president and cabinet would be that much more willing than Congress to stick their necks out. Before risking their jobs for a futile effort, the cabinet would probably seek assurance that they had enough support in Congress. If the premise here is that Congress would not want to make the first move, though, it would be difficult to get that assurance. The bottom line is that members of Congress would either be willing to vote against the president or not. If enough of them wanted him out, why would they bypass impeachment and pause to wait for dozens more House members and the vice president and cabinet to join their ranks? Once again, impeachment is easier.
The third possibility turns on Section 4’s main advantage—its immediacy. Impeachment could take weeks; Section 4 takes an instant. Once stripped of his power, the president would have to wait at least four days to take it back. Thus, even if the president were able to contest a Section 4 action right away, the vice president and cabinet could use it to prevent an imminent catastrophe. Ordinarily, if the president were unhinged but able to communicate, Section 4 would be a bad idea. But if he were unhinged and about to order a nuclear strike, Section 4 could be a literal lifesaver. It could stop the president and, if Congress were so inclined, buy time for impeachment while keeping things safe in the meantime.
None of these three situations apply today. In sum, Section 4 of the 25th Amendment works differently and is less useful for President Trump’s opponents than many of them seem to think. They should set their sights elsewhere.
Brian C. Kalt is a law professor at Michigan State University and the author of Constitutional Cliffhangers; A Legal Guide for Presidents and Their Enemies.