The 25th Amendment (and you know who).


When I took Constitutional Law back in law school, no one ever talked about the 25th Amendment. Despite the course being 4 credits and being taught by an amazing professor (who now sits on the 7th Circuit Court of Appeals), you just can't cover everything in the Constitution.  (The Constitution Annotated, with expert commentary and cites to every major Supreme Court case, which you can download for free here, is 2862 pages long).  Also, because it had never been litigated (and still hasn't), and worked out just fine during the Watergate (and post-Watergate) Agnew/Nixon/Ford transition, it just wasn't an issue. 

You can read the 25th Amendment here.

But the Watergate mess only involved the first two sections of the Amendment: Section 1 (President resigns, Vice President takes over) and Section 2 (Vice Presidency vacant, President selects a Vice President, confirmed by a majority vote of both Houses of Congress), though it happened in reverse order.  And the uses of Section 3 (the President telling the President pro tempore of the Senate and the Speaker of the House that he cannot "discharge the powers and duties of his office") which was used during the Reagan and George W. Bush administrations, when the Presidents had surgery and it was necessary to transfer authority to the Vice President, were non-controversial.  But what about Section 4?

When you hear news stories about the 25th Amendment during the Trump administration and about Trump, they are really talking about Section 4.  It's too lengthy a section to write out here (see the link above) but the thrust is, at least on its face, fairly simple: a President who is or may be unable to fulfill their constitutional role ("unable to discharge the powers and duties of his office"), but who cannot or will not step aside, can be removed.  The decision is made by 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" (emphasis added).  The decision is relayed to the President pro tempore of the Senate and the Speaker of the House in writing, at which time the Vice President becomes Acting President.  In a lengthy second paragraph, there is a provision for the President to tell the Speaker and the President pro tempore that no inability exists.  If the original deciders also agree, the President reassumes the office; if they continue to think the President can not/will not discharge their duties, they convey that to Congress which has twenty-one days after they convene to decide the issue.  The votes required to keep the President out of office are 2/3rds of both Houses.

Without arguing for either side of whether President Trump ought to be removed under Section 4 (taking sides violates the Prime Directive of this blog), I will tell you about the problems inherent in the 25th Amendment.  The issue is whether Trump's perceived habitual/pathological lying and fact denying, caused or exacerbated by a real/perceived narcissistic personality disorder, rises to the level of Section 4's standard of "inability" or "unable to discharge the powers and duties of his office".  Can someone without credibility conduct foreign policy, negotiate treaties, keep confidences?  Can he be trusted to enforce the laws fairly, handle the military? What if he can do the job, at least minimally, but just doesn't want to?  Notice also that we are not talking impeachment under Article II, Section 4 for "Treason, Bribery, or other high Crimes or Misdemeanors". Trump has not been charged, and while there is a minority position that argues that a crime is not necessary for impeachment, no President has ever been impeached absent a crime, which tracks with the text of the Article, and I expect it to stay that way. (Though I am keeping an eye on the emoluments litigation, though that's another posting), 

I owe much of what follows, including the case cites, to the article by Professor David Pozen in the Amendment XXV section of the Interactive Constitution hosted by the National Constitution Center, found here.  (I highly recommend the National Constitution Center website).

For starters, what exactly are the "executive departments" and their "principal officers" who decide to invoke Section 4 along with the Vice President?  Sounds like the Cabinet, right?  But two things crop up here. The 25th Amendment (ratified in 1967) doesn't say "Cabinet", only "executive departments".  The Supreme Court has suggested (it was not part of the holding of the case) that "department" in Section 4 means only those listed in 5 U.S.C. §101 (Title 5 of the U. S. Code, §101: Government Organization and Employes; The Agencies Generally; Executive departments), which are the Cabinet departments as normally understood. Freytag v. Commissioner, 501 U.S. 868, 887 (1991). What about "principal officers"?  Cabinet Secretaries and the Attorney General clearly fit, but what about folks who participate in Cabinet meetings but do not head executive departments (e.g., the U.S. Trade Representative)? What about people nominated by the President and confirmed by the Senate, of whom there are hundreds? While the supporters of the 25th Amendment asserted that only Cabinet members were who they meant, that in fact is not what they said, and the Supreme Court gave a wide-ranging definition of "principal officers" under the Appointments Clause ("selected by the President with the advice and consent of the Senate"). Buckley v. Valeo, 424 U.S. 1 (1976).  If you include all of these, a non-Cabinet majority could form.

While the 25th Amendment is vague in this regard and could be argued to extend beyond the Cabinet, I don't think that would be the real issue.  Other than the obvious fact that Vice President Pence and the Cabinet are highly unlikely to invoke Section 4, and Congress is only a bit more likely to do so, there remains the problem that "inability" or "unable to discharge the powers and duties of his office" is nowhere defined, and its invocation could destabilize the entire political system.  This, in fact, was the case in 1988 when Howard Baker, Chief of Staff to President Reagan, was contemplating invoking Section 4 because Reagan was so depressed and inattentive after the Iran-Contra affair.  It blew over.  And no one thinks Section 4 should be lightly invoked: it is not meant to circumvent the impeachment process or punish an unpopular president.  Leave that to House of Cards.  And while leaving terms vague or undefined is a hallmark of constitutional drafting, allowing for flexibility in circumstances the drafters can't (or are not so arrogant to assume they can) predict, when and how to apply the Section 4 standard could sure use some guidance, or a Supreme Court case,

A President in a coma?  Clear as day.  A President who has trouble with sentence structure?  Annoying to listen to, but not Section 4 material.  A President who manifests one or more symptoms of one or more psychological disorders that impact his relationship to truth and reality?  And even if Section 4 is invoked, what if President Trump comes back after a while, say after therapy?  If the Vice President/Cabinet or the Congressional body still says "No", will 2/3rds of each House of Congress also say "no"? We are looking over the edge at this point.  It can be done: that's why there is the 25th Amendment.  But as Professor Pozen points out, we "do not necessarily need to change constitutional law but...constitutional culture."  I agree.  To do otherwise could be a constitutional Choose Your Own Adventure.




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