THOUGHTS ON THE 25TH AMENDMENT

The news of late includes word of Republicans (Sen. Bob Corker, for example) joining the chorus of Democrats questioning President Trump’s fitness to hold office. Some of those voices (on the Democratic side) are ones that have also called for impeachment. Even if Special Counsel Robert Mueller finds traction enough to indict two or three participants in the Trump campaign and even if Trump himself authorized communication with Russian state agents, he will not be impeached. Mueller is wasting time and federal money.

The CLB recognizes the substantial flaws in Donald Trump and holds the view that his election was made possible only by the more frightening prospect of Hillary Clinton as President. It is the sincere hope of the CLB that President Trump is having fun playing the role he penned as the first “inscrutable” American President. Still, he lacks the essential self-restraint for true inscrutability and projects the appearance of irrationality.¹

What says the 25th Amendment about an irrational President? Here is the text of the 25th Amendment to the United States Constitution as adopted February 10, 1967:

Amendment XXV

Section 1.
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.
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.

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 the purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not 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.

Sections 1, 2, and 3 tell us nothing about the involuntary removal of a sitting president for an actual or perceived incapacity. Section 4 remedies that deficit with a virtual “how to” for an oval office coup.

What are grounds for removal? The textbook answer is most likely that the President is subject to removal or suspension for an “inability” to discharge the powers and duties of his office. The CLB answer is that grounds for removal are (excluding all else) the agreement of the Vice President and a majority of the Cabinet members to declare in writing that the President is “unable to discharge the powers and duties of his office.” This is the first written declaration. Is there a requirement of some underlying illness or injury?…No, there is not. Is there any requirement of evidence of the President’s inability to serve?…No, there is not.

What happens if the President objects to his ouster?…The President may transmit his own written counter-declaration that no inability exists (the second written declaration) in which case he shall resume being President unless the Vice President and a majority of Cabinet members act within four days (of the President’s declaration) to transmit a redundant written declaration (the third written declaration) that the President is unable to discharge the powers and duties of his office.

When all three written declarations have been made and transmitted to the President Pro Tem of the Senate and to the Speaker of the House, then “Congress shall decide the issue.” While Congress is deciding or waiting to begin deciding, who is President?…The CLB’s position is that the mutinous Veep would serve as “Acting President” from the time of the transmission of the first written declaration until the President is restored under the terms of Section 4. Restoration could result from the absence of a third written declaration within four days of a second or by sufficient support in Congress to defeat the ouster vote.

How long does Congress have to decide?…Three weeks or so, depending a bit on whether Congress is in session when the third written declaration is transmitted. “Removal” of the President then requires a two-thirds vote in both the Senate and House of Representatives, within the time allowed, that the President is unable to discharge the powers and duties of his office. Is there a “trial” of the President, as in the case of impeachment?…There is no requirement of a trial, hearing, or evidence of inability to serve. The only requirement in Congress is a vote carried by a two-thirds majority in both the Senate and the House.

Under Section 4 Congress may name “such other body” to replace the President’s own Cabinet as the second vote (following that of the Veep) for a first or third written declaration. In this fashion Congress can substitute its own proxies for the presumptively loyal Cabinet members. Such will not occur during the Trump administration without the support of a substantial number of disaffected Republicans in Congress.

But what about the first vote in a first or third written declaration?…Section 4 is nothing without the Veep. No involuntary removal of a President can go forward without the support of the Veep. There is an alternative to Cabinet support. There is no alternative to support from the Veep. The CLB imagines that much carnage (of one sort or another) would precede the support of Vice President Pence for an effort to remove President Trump.

Is there a return path for a removed President?…Section 3 provides that a President may remove himself (temporarily or not) by his own written declaration that he is unable to serve and then restore himself to the Office with a follow-up written declaration that he is no longer unable to discharge the powers and duties of his office. Section 4 respecting a President’s involuntary removal provides one narrow path to restoration if the mutineers transmit their first written declaration (conditionally removing the President) the President may restore himself to office by transmitting his counter-declaration (the “second written declaration”) asserting that no inability exists, but only if the Veep and Cabinet majority fail to proceed with a redundant “third written declaration” that transfers the matter to Congress. After a transfer to Congress, the removal of the President may be reversed by the absence of a timely two-thirds removal vote in both Houses. Once a President is removed by Congress, there is no path to restoration in the text of the Amendment.

Let’s say that a President is experiencing the “final days” condemnation, isolation, and paranoia of Richard M. Nixon, but – unlike Nixon – refuses to resign. If this President’s Veep and Cabinet pull the trigger on a “first written declaration” under Section 4, what strategy is available to the President?…He can transmit his counter-declaration (the “second written declaration”) and thereby move the matter one step closer to resolution by a hostile Congress, or he can exercise some forbearance and do nothing for the time being. In such a case, the President would be removed from office but not necessarily permanently removed. The strategy of our hypothetical President could be to wait on the sidelines for a favorable change in public sympathy or in the political climate and then transmit the counter-declaration which is his right under Section 4, requiring the Veep (a/k/a “Acting President”) and Cabinet majority to respond within four days with a redundant “third written declaration” to keep the original President removed pending transfer of the dispute to Congress. While Section 4 contains time limits, there is none applicable to how long a President may wait to file the counter-declaration required to contest his removal. You read it here that there is much potential for intrigue in the application of the 25th Amendment.
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¹We have had unforgivably reckless presidents in the past, such as JFK provoking the Cuban missile crisis by installing nuclear-tipped ballistic missiles in Turkey; and some hold that Ronald Reagan suffered senile dementia or early Alzheimer’s symptoms while in office.

 

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