Is The 25th Amendment A Viable Alternative For Impeachment?
It’s actually harder than impeachment.
We have an increasingly erratic President. He never had any respect for the truth, and to the extent he believes the lies he tells that suggests he has no connection to reality. A minor, but telling example, occurred just today as he tweeted a demand that we study one of his prior lies.
Trump is referring to a previously debunked lie of his. That Pershing executed Muslims using bullets dipped in pig’s blood. Here’s the longer version.
Simply put, this entire urban legend is a lie. It never happened. Trump lies so much and some are big lies and some are little lies. This is a comparatively little lie. The significance of it is not in the substance of it, but that he told it again, even after having told it before and knowing the story was completely discredited. He’s either a pathological liar, or off his rocker . . . or both. The thing is, there are scores more examples of stuff like this. Let’s face it. From the Morning Joe tweets, to the Obama wiretapping tweets, to the Comey better hope there are no tapes tweets, to the blood streaming from her whatever tweet, to the dozens of Birther tweets and so on and so on and so on . . . sane people don’t tweet like this.
Even some Republicans are starting to question his fitness to be President. Today Republican Senator Bob Coker stated “The President has not yet been able to demonstrate the stability nor some of the competence that he needs to be successful.”
The Constitution allows impeachment for only high crimes and misdemeanors. The Russia investigation may yet provide proof of that.
The 25th Amendment provides another path that some are talking about. The Kennedy assassination brought home the inadequacies of the Constitution in the modern era regarding Presidential succession. Originally Article II, Section 1 of the Constitution simply said that the Vice President shall become President “in Case of the removal of the President from Office, or of his death, resignation, or inability to discharge the Powers and Duties of the said Office.”
So who has the power to decide the President is unable to discharge his duties? The 25th Amendment attempted to answer that question, setting forth a complex process that has never come close to being tested. Let’s take a look.
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.
So to even start this process Vice President Pence, and the majority of the cabinet, has to agree and transmit to the Senate that President Trump is unable to discharge the duties of the Presidency. There’s a couple of obvious problems. Not only were these people handpicked by Trump, all of them (with the exception of the Vice President) serve at the pleasure of Trump. If he gets wind they are planning this, he can just (in theory) fire them.
This clause, for the most part, assumed a President was just temporary disabled by illness or injury. Note the Vice President does not actually become President, but just the “Acting President.” The temporariness is made clear as the 25th Amendment continues and states the President can reassume his powers just by telling the Senate he is fine.
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 . . .
But the VP and cabinet can challenge the President’s claim . . .
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.
So in the unlikely event Pence and a majority the cabinet deem Trump unfit, Trump can resume his powers just by telling Congress he is okay after all. That stands unless Pence and a majority of the cabinet (still serving at the pleasure of the President) again tells Congress “trust us, he’s not okay.” Should that happen, the Constitution provides Congress shall decide.
Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress . . .. 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.
That two-thirds vote by both Houses is actually a higher standard than impeachment. Impeachment requires only a majority vote in the House to refer and two-thirds vote in the Senate to convict.
So put simply, not only does the 25th Amendment require the additional layer of the cooperation of a cabinet beholden to the President, but it also requires a stronger majority of Congress than impeachment. It is objectively much more difficult than impeachment. So if you are thinking about this option you might want to focus on the easier path of impeachment.