Why the 25th Amendment Is a Dead End

(Bloomberg Opinion) -- The anonymous New York Times column by a “senior official in the Trump administration” has people talking about the 25th Amendment again. But the writer is absolutely correct: Trying to remove the president by that mechanism – an idea that apparently was batted around in “early whispers within the cabinet” — would have failed, risking a serious constitutional crisis. 

That’s because the relevant portions of the 25th Amendment allowing the removal of a president “who is unable to discharge the powers and duties of his office” are poorly drafted, and are entirely useless for a situation in which the president contests his removal.

Section 4 starts out OK.

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.

Note that invoking the 25th means the president remains president.Unless Trump subsequently resigned, he would still have the title. He probably would retain the White House, too. That, of course, is appropriate in cases of a temporary disability. But that’s not what we’re talking about in what would certainly be a hostile takeover. That alone would be pretty ugly. But then comes the procedure Trump could follow to challenge what the cabinet had done:

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.

To begin with, the 25th has a high bar for success. Blocking Trump’s challenge would require a “two-thirds vote of both Houses.” Impeachment and removal require only a simple majority in the House followed by two-thirds of the Senate. 

It gets worse. Even a two-thirds vote of both chambers doesn’t permanently settle the issue. Trump would remain president with Mike Pence serving as acting president, and Trump would presumably be free to try to resume his functions again and again. He could apparently force a vote once a month for the remainder of his term, all while living in the White House and being fully entitled to call himself president of the United States. 

And that’s only the basics. Some of what presidents do would clearly fall under “powers and duties of his office.” But some of it is more ambiguous. Would a president who had been sidelined by the 25th Amendment retain the use of Air Force One? If Trump could keep the White House residence, could he also claim the West Wing offices, including the Oval Office? And then what happens if, say, Vladimir Putin decides to hold a summit with him? Trump would be unable to make legally enforceable agreements, but he would still be the president. Would Acting President Pence try to stop it? On what authority? 

Even worse: Brian Kalt has floated a true nightmare scenario. As he points out, there’s at least some ambiguity in the text of the 25th about how much of a delay is required between when the president reasserts his ability to serve and the point at which the vice-president and the majority of the cabinet transmit their belief that the disability continues. Trump might claim that he was entitled to the “powers and duties” in the interim, or perhaps even until Congress voted to confirm his inability to govern. In other words, the 25th might give us a period in which two people had at least plausible claims to the office. Now that’s what I’d call a constitutional crisis. 

It’s also worth thinking about the legitimacy of the question. The 25th was introduced in 1965 with severe disability in mind. The authors looked back not only to Woodrow Wilson’s stroke, but also Dwight Eisenhower’s heart attack and the then-recent assassination of John Kennedy, which could very well have left him in a coma for years. True mental illness might qualify, but most of the insider complaints about Trump don’t really suggest that is the problem; the critics just think he’s a blithering, bombastic, moron.Indeed, they really aren’t saying anything about him that the voters couldn’t have seen back in 2016. And if that’s the case, it’s hard to see a justification for imposing their own essentially arbitrary test for fitness as a substitute for the voters’ judgment.

If those close to Trump really think he must be removed from office, impeachment and removal are a better tool. The case for abuse of power, obstruction of justice, and generally violating the oath of office may still not be so obvious that it demands congressional action. But impeachment has always been political, and it’s reasonable for Congress to take into account Trump’s general unfitness for office when it decides whether to move ahead. Meanwhile, impeachment has a lower congressional threshold, making it (relatively) easier than relying on the 25th. And it is constitutionally swift and sure, leaving no ambiguity after it happens.It’s true that the anonymous op-ed writer seems at least as concerned with Trump’s violations of conservative orthodoxy, especially on trade, than he or she is with the general lawlessness of the administration. But perhaps that’s just a message for Republicans who refuse to accept what all the other anonymous leakers have told us. At any rate, there’s no reason it should guide anyone going forward.

The bottom line is that the 25th Amendment simply isn’t adequate to the task of removing a president who remains in good enough condition to contest it and wants to do so. Regardless of whether impeaching the president is a serious question, talk of invoking the 25th, even if well-intentioned, is just misguided and dangerous. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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