goodbyes

The Case Against Using the 25th Amendment to Get Rid of Trump

The plotters?

In recent days, after comments made by Senator Bob Corker questioning President Trump’s mental fitness to be president and a Vanity Fair article reporting that White House insiders fear Trump is “unraveling,” 25th Amendment talk has once again started to swirl. CNN is asking: “Is it time to talk about the 25th Amendment?” Washington Post blogger Jennifer Rubin pondered the question, “When do we reach 25th Amendment territory?” Section 4 of the amendment provides that if the vice-president and a majority of the Cabinet declare a president is “unable to discharge the powers and duties of his office,” the vice-president immediately takes over as acting president. To many of those who cannot countenance Trump’s conduct in office, Section 4 seems like a swift, attractive alternative to impeachment.

It’s not.

This is not to agree with those who say that using Section 4 would constitute a coup d’état. A Section 4 action would be very hard to pull off against an unwilling president, requiring not just the support of the vice-president and Cabinet, but also two-thirds majorities in the House and Senate. That assortment of decision-makers would not reach such a consensus blithely. If they did vote to displace the president, the decision would be both legally and politically legitimate.

A possibility of legitimacy is one thing; actually being prudent is quite another. Section 4 advocates ignore the many ways in which Section 4 would be ineffective, and potentially dangerous, even if their worst fears about Trump are true. Their case for Section 4 is rooted in facts — concern about the havoc they see Trump wreaking — and a desire to do something, anything, to stop him. But this overlooks key features of the actual law and constitutional structure of presidential disability.

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The Section 4 process has three steps. First, the vice-president and a majority of the Cabinet declare the president “unable.” (Congress can designate an alternative to the Cabinet to make this call, but it has never done so.) Second, whenever the president declares that “no inability exists,” the vice-president and Cabinet have four days to disagree. If they do not reassert that the president is disabled, the president retakes power at the end of the four days. If they do disagree, though, the vice-president stays in control and the third step occurs: Congress convenes and resolves the disagreement on a strict timeline. Only if two-thirds majorities in both the House and Senate vote to displace the president does the vice-president continue to act as president. The president is not removed; he can keep reasserting his ability, forcing new votes.

Section 4 is vague on just what constitutes “inability.” Being unable to discharge the powers and duties of the office seemingly requires actual incapacity, not just misusing power for foolish or destructive ends. If the latter sufficed, every president would face calls for a Section 4 action from some segment of the electorate. What gives strength to the standard is the consensus required to invoke it successfully. To paraphrase Gerald Ford, inability is whatever the vice-president, a majority of the Cabinet, and (if the president contests it) two-thirds of the House and Senate say it is. But the flip side of this is key: “Inability” is only what the vice-president, a majority of the Cabinet, and two-thirds of the House and Senate say it is. That sets the bar very high — much higher than it is set for impeachment. In an easy case, like a president who suddenly falls into a coma, there would be no problem. But Section 4 is a terrible fit for a president who is lucid, able to fire people, and capable of rallying his supporters on Twitter.

For one thing, a president who is competent enough to read public musings about Section 4 can preemptively fire Cabinet members he suspects of plotting against him. This would serve a double purpose: showing that he is able to discharge the powers and duties of his office; and stacking the Section 4 decision-making deck. The president could fill those vacancies immediately with (presumably loyal) acting secretaries. It is unclear whether acting secretaries can vote in Section 4 actions, raising the specter of a disastrously messy vote, the result of which turns on whose votes count.

If the vice-president and Cabinet were somehow able to invoke Section 4 without the president getting wind of it first, a second problem is that the president would surely contest it — repeatedly, if necessary. Section 4 advocates point to its immediate effect compared to the slow impeachment process, but this immediacy is bundled with a lack of finality. To retake power, all the president needs is the support, one time, of more than a third of either the House or Senate. The whole process would be wrenching and horribly disruptive.

A third problem is that Section 4 is drafted less than perfectly. The best reading of Section 4’s text — and the clear message from its drafting history — is that when the president declares he is able, he does not retake power until either (1) four days pass without the vice-president and Cabinet disagreeing; or (2) he, the president, wins the vote in Congress. But the text is ambiguous on this point and commentators have frequently misread it as allowing the president to retake power immediately upon his declaration of ability.

If learned commentators have made this error in quiet moments, you can imagine a president making the same “error” in the heat of an attempt to remove him. He would have every incentive to do so and, further, to rally his supporters around his misinterpretation. What’s more, a president in such a situation would almost certainly fire the Cabinet members who voted against him. Creating doubt about who is actually president and who is actually the Cabinet, to put it mildly, is an awful prospect. To be unworried about such a possibility, you have to assume that, in the middle of such a crisis, the nation and its government would collectively set aside their personal political opinions, carefully consider the dueling abstruse legal arguments, and reach a perfect consensus, all within a few minutes.

So, this is the likely result of invoking Section 4 against President Trump: Vice-President Pence becomes acting president for five minutes before Trump contests the action. In the best-case Section 4 scenario for Trump’s opponents, Pence stays in control for a week or two until Trump wins in Congress. In the worst-case scenario, all hell breaks loose in the meantime.

Why, Section 4 advocates might ask, does Trump win the vote in the best-case scenario? Because the congressional bar is set higher for Section 4 (two-thirds in both House and Senate) than for impeachment (majority in the House, two-thirds in the Senate). Currently, even with every Democratic vote, winning two-thirds of the House requires 40 percent of Republican votes, too. The numbers needed for impeachment would be attained long before the numbers needed for Section 4 would be. It may be that Congress would only be willing to move down this path if the vice-president and Cabinet kicked things off, but it seems unlikely that Congress would be that reticent if, at the same time, the vice-president and Cabinet are not.

The drafters of Section 4 did this intentionally, because they did not want Section 4 to be used as an end run around the impeachment process. And who in the anti-Trump commentariat or in Congress would support a Section 4 action but not impeachment? Again, Section 4 is a bad fit for a president who can fire people and tweet; it is exceedingly unlikely that such a president could act so horribly as to warrant a Section 4 action without also acting so horribly as to warrant impeachment. By contrast, falling into a coma or going missing are not impeachable offenses; it is for such cases that Section 4 is best left.

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The most common response I have heard to this analysis is that presidents have the power to destroy life on earth in a matter of minutes, and if that power is held by someone who has lost his marbles, Section 4 is the only way to wrest power from him immediately to save the world. In such a situation, I would concede that Section 4 would be worth using. Even with all of Section 4’s drawbacks, the cost of inaction would be too high.

But what would really happen in such a case? Would Section 4 be the only thing preventing the apocalypse? Certainly not. For the most part, presidents require the assistance of an army of underlings (including, most prominently, the Cabinet) to make anything happen. If a president goes mad, his underlings would presumably resist putting his mad decrees into effect. If they would not — if they too have gone mad — then Section 4 is probably no help anyway.

Once they have resisted the mad decrees, the Cabinet and vice-president would do well to invoke Section 4. There would be unanimity in such a case, or close to it. If the president were clearheaded enough to contest the action, there would be no one to support a misinterpretation of Section 4 that immediately restored his power. Congress would not back him. Section 4 would have worked. But until and unless something so extreme as this fever dream happens, Section 4 is not the way to go.

Brian Kalt is a professor of law at Michigan State and the author of Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.

The Case Against Using 25th Amendment to Get Rid of Trump