On September 5th, during the same week that Robert Woodward's book "Fear: Trump in the White House" was being promoted, The New York Times published an anonymous opinion piece entitled: " I Am Part of the Resistance inside the Trump Administration." The essay was attributed to a "senior official working for the Trump administration," criticize Trump, and stated that many members of the administration deliberately disobeyed or ignored suggestions and orders for the good of the country. The author wrote: "The root of the problem is the President's amorality. Anyone who works with him knows he is not moored to any discernible first principles that guide his decision making." Fairly common-place criticism frequently uttered by the opposition to the current administration. However, what seemed more intriguing was the assertion that some cabinet members during the early days of the administration discussed invoking the Twenty-Fifth Amendment to our Constitution in order to remove the President from power.
Predictably, politicians on all sides expressed their opinions about their relative desire to or the feasibility of using this constitutional tool to unseat our current President. Senator Elizabeth Warren, a potential presidential candidate in 2020, told CNN: "If senior administration officials think the President of the United States is not able to do his job, they should invoke the 25th Amendment. They can't have it both ways. Either they think the President is not capable of doing his job, in which case they follow the rules in the Constitution, or they feel that the President is capable of doing his job, in which case they follow what the President tells them to do." The Federalist's political writer David Harsanyi responded to the op-ed by opining: "The notion that the bureaucratic class in Washington should dictate which policies presidents are allowed to advocate simply by ignoring their wishes sounds a lot like a soft coup than a constitutionally principled resistance." Meanwhile, the White House appeared to be more concerned with uncovering the identity of the author than in discussing the essay's content. With all of this going on, the casual observer might justifiable ask: What exactly is the 25th Amendment to our Constitution, and how might it apply to the perceived situation at hand?
The Twenty-Fifth Amendment was proposed in Congress during the aftermath of the assassination of President John F. Kennedy, and was intended to clarify the succession process for the President or Vice President in the event of death, removal, resignation, or incapacitation. The amendment was sent to the states on July 6, 1965, and was adopted February 10, 1967. The amendment consists of 4 sections. The first three cover how succession is to be handled . This issue was left unclear and imprecise in the original Constitution. Until the adoption of the 25th Amendment succession of a President stipulated that the Vice President would take over as "Acting President" until the elected President could resume his (or her) duties, or until a new President was elected. If neither President or Vice President could do the President's job, Congress would decide who takes over. The first three sections clarify and formalize this process.
The critical section enumerated in the anonymous op-ed is section 4. It states: "Whenever the Vice President and a majority of either the principle officers of the executive department or of such body as Congress may by law provide, transmit to the President 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 of the office as Acting President." The President can subsequently transmit written declaration that no inability exists, and resume powers and duties. Within four days the VP et al can restate their earlier transmissions, after which Congress would need to agree by a 2/3 vote. When it does, the VP will continue a Acting President.
Section 4 of the Amendment is both he most interesting and most difficult section to apply. It covers a case of inability when the President cannot or refuses to declare his own inability. Mid 20th century lawmakers anticipated a President whose instability might amount to disability. Multiple times during our history situations developed that could have fir the parameters of this section . James Garfield was bedridden after he was shot, Woodrow Wilson had a stroke in October of 1919, which was effectively hidden from the public, Dwight Eisenhower suffered a heart attack in 1955 and a stroke in 1957, yet no attempt was made to remove any of them from office. In fact, section 4 has never been used. It was contemplated twice after the 1981 assassinated attempt on President Ronald Reagan. Given the sentiment displayed in the September 5 op-ed it should be noted that it was clear from the debates at the time of adoption and ratification that "unpopularity, incompetence, impeachable conduct, poor judgment and laziness do not constitute an "inability" within the meaning of the amendment." (Jon Meacham, "Could the 25th Amendment be Trump's Downfall," Time , Jan 26, 2018.)
For all the hype and political grandstanding, the consensus seems to be that since the invocation of section 4 of the 25th Amendment requires buy-in from the Vice President, the majority of Trump appointed cabinet members, and 2/3 of the Republican controlled Congress, the entire concept is a non starter. Ultimately, we should also recognize that our Constitution incorporates , what I would call, dynamic stability. It allows us potential remedies for perceived grievances, but it won't be manipulated by political whim. Forcibly removing a President is a destabilizing event. Neither impeachment, nor invoking the 25thAmendment involve processes that can easily accomplish the intended result. Either might be used to release political steam. However, because of built in safeguards, neither has ever been used successfully. Deliberately or not, our Founders implied that the voting booth remains the most secure democratic vehicle to affect desired change.
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