Nice idea, but 25th Amendment is no fix for a dysfunctional presidency

Nice idea, but 25th Amendment is no fix for a dysfunctional presidency
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In the era of President TrumpDonald John TrumpHouse Republican threatens to push for Rosenstein impeachment unless he testifies Judge suggests Trump’s tweet about Stormy Daniels was ‘hyperbole’ not defamation Rosenstein faces Trump showdown MORE, we are having to ponder things about the Constitution that have long been relegated to “this-would-never-really-happen” law professor hypotheticals. The latest arcane provision of note is the 25th Amendment.

Last week, the New York Times published an anonymous op-ed by a senior official in the Trump administration revealing that the “there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president.” Although we’ve never seen such a “quasi-mutiny” in the nation’s history, other parts of the 25th Amendment have come in handy since it was adopted in 1967.

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The 25th Amendment did two important things, which (so far) have no bearing on the Trump presidency. First, it clarified the line of succession if the president dies, resigns or is disabled. This was necessary because Article II of the Constitution states only that “the Powers and Duties of the said Office . . . shall devolve on the Vice President.” 

The amendment makes clear that the vice president becomes the president in that event — which has happened only once since the amendment was implemented, when Gerald Ford succeeded to the presidency after Nixon’s resignation post-Watergate. It also allows the president to voluntarily initiate a procedure that temporarily makes the vice president the acting president while the president is “unable to discharge the powers and duties of his office.” In 1985, for example, President Ronald Reagan invoked it while undergoing surgery, rendering George H.W. Bush the president for approximately eight hours.

Second, the 25th Amendment fills in a complete blank in the Constitution insofar as what happens in the event that the vice presidency becomes vacant. In the wake of the assassination of President John F. Kennedy in 1963, Lyndon B. Johnson served 14 months as president without a vice president — the 16th time that the office had been vacant in the history of the nation. Under the amendment, the president nominates a replacement who is confirmed by a majority of both houses of Congress. The procedure was used in 1973, when Spiro Agnew resigned after pleading no contest to a felony charge of tax evasion and was replaced by Gerald Ford. It was invoked a second time when Ford — having assumed the presidency after Nixon’s resignation — nominated Nelson Rockefeller as vice president.

The provision at issue in the Trump era is Section 4, which is a sort of insurance clause that allows a president’s top advisers to invoke the temporary disability procedure when the president can’t — or won’t. In 1981, for example, John Hinkley shot President Reagan and three others outside a Washington, D.C. hotel in a failed assassination attempt. Reagan was rushed into surgery, unable to willingly transfer his powers to Vice President Bush. Although Bush was on a plane and unable to invoke Section 4 on Reagan’s behalf, this was the type of situation that it was designed to address: a vacant presidency due to a sudden, temporary disability.

Arguably, the amendment can also be invoked as a sort of mutiny provision to rein in a president who is unable to discharge his duties for some reason other than physical disability. In Trump’s case, the op-ed author claimed that “[a]nyone who works with him knows he is not moored to any discernable first principles that guide his decision making;” that his leadership style is “impetuous, adversarial, petty, and ineffective;” and that “he engages in repetitive rants, and his impulsiveness results in half-baked, ill-informed and occasionally reckless decisions that have to be walked back.” Reportedly, Reagan’s staff also contemplated using Section 4, because “Reagan was ‘inattentive,’ ‘inept’ and ‘lazy.’” After the top brass had a meeting with the president “‘to see if he was indeed losing his mental grip,’” it concluded “‘he was in perfect command of himself.’”

The way the Section 4 process works is that the vice president and a majority of the president’s principal officers — i.e., his cabinet, although the term “principal officer” is itself undefined — lets Congress know that the president is unable to perform the duties of his office. (Congress can, by statute, give this power to some other “body,” but it hasn’t, so that power remains — in Trump’s case — with Vice President Mike PenceMichael (Mike) Richard PenceIndiana sisters with history of opposing Pence donate millions to Dems Hillicon Valley: Trump signs off on sanctions for election meddlers | Russian hacker pleads guilty over botnet | Reddit bans QAnon forum | FCC delays review of T-Mobile, Sprint merger | EU approves controversial copyright law Overnight Defense: Trump marks 9/11 anniversary | Mattis says Assad 'has been warned' on chemical weapons | US identifies first remains of returned Korean war troops MORE and Trump’s top advisers.) Once the declaration is sent, the vice president immediately becomes acting president under the Constitution. 

The anonymous author wrote that this option was scrapped because “no one wanted to precipitate a constitutional crisis.” As with the question of whether a sitting president can be criminally indicted, people might disagree over whether impeachment is the only proper means of unseating a president who is incompetent or corrupt. But in rejecting the Section 4 route, the Trump advisers were making another point. It’s hard to imagine how such a transfer of power could possibly be enforced if Trump were to refuse to recognize the written declaration. The president is in charge of the U.S. Marshal — could the vice president order him escorted out of the Oval Office? What if the president gave a competing order, on the theory that the acting presidency was invalid? Which would the U.S. Marshal follow?

Under the 25th Amendment, moreover, the president would get to send a counter-declaration to Congress, stating that “no inability exists.” The munity team could then send a second declaration of inability, leaving it to Congress to decide — by two-thirds of each house — which camp is correct about his fitness for office: the president or the vice president qua acting president.

The Constitution says nothing about how such a decision would be made. Would it be by trial in the Senate as in the event of an impeachment? Or would something less formal like dueling declarations suffice? And if there were competing views as to what process applies (as there surely would be), who decides which governs? Would it go to the Supreme Court? Or would the majority party in the Senate get to make the call on pure ideological and political grounds, even if that means ignoring the legitimacy and gravity of the initial declaration of unfitness?

You can see where this is going. Section 4 is a nice thought, and an important provision to highlight theoretically insofar as it underscores the untenability of an inept president. But at the end of the day, impeachment remains the best bet for addressing fatal problems with an incumbent presidency. And if Congress is unwilling to take that step, it’s not likely to pull the Section 4 trigger, either. Ultimately, therefore, it’s up to voters to keep a close eye on things by exercising their prerogative to hire and fire at the ballot booth. 

Kim Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her forthcoming book, “Debatable: A ‘How To’ Guide to the Constitution.”