The anonymous op-ed in The New York Times is fueling speculation that the 25th Amendment could be used during this administration. However, if it is invoked and Donald Trump objects, it would require a two-thirds vote in both houses of Congress to sustain it.
“Given the instability many witnessed, there were early whispers within the Cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until—one way or another—it’s over,” the unnamed administration official wrote.
The mention of invoking the 25th Amendment by a Trump administration official has emboldened Democratic critics to seriously consider the ramifications of the idea.
“What kind of a crisis do we have if senior officials believe that the president can’t do his job and then refuse to follow the rules that have been laid down in the Constitution?” asked Sen. Elizabeth Warren. “They can’t have it both ways. Either they think that 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.”
Raising the prospect of the 25th Amendment certainly stirs up interesting political debate, but what does it really take to remove a president from office?
History of the 25th Amendment
When drafting the Constitution, the Framers addressed the potential death or incapacity of the president. Article II, Section 1, Clause 6 states:
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, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
While Article II ensures that there is never a presidential vacancy, it fails to address many other succession issues. For instance, it did not establish a process for determining presidential disability. In 1919, President Woodrow Wilson’s wife covered up the fact that the president suffered a debilitating stroke, and he remained in office until his term ended in 1921. Wilson’s cabinet, Congress and the public were unaware that Edith Wilson had been administering his executive powers until after Wilson left office.
Because the Constitution did not provide a procedure for filling a vacancy in the office of the Vice President, the position could not be filled until the next election. Following the death of Franklin D. Roosevelt, President Harry S. Truman did not have a vice president until he was elected to a term of his own.
In the wake of the assassination of President John F. Kennedy in 1963, Congress began to address the need for clear succession guidelines for the Office of the President and Vice President. The 25th Amendment was ultimately adopted on February 10, 1967. The amendment clarifies that if the president is removed from office, dies or resigns, the vice president automatically becomes the president. The amendment also provides that, in the event of a vacancy, the president can directly appoint a new vice president, who must then be confirmed by a majority of both the Senate and House of Representatives.
Inability to Discharge the Powers and Duties of the Presidency
The 25th Amendment also addresses what should happen if the president is no longer able to do the job. While the president may provide a written declaration, the Constitution also allows the vice president and a majority of the Cabinet to notify Congress that they believe the president unable to fulfill his duties. Section 4 of the 25th Amendment provides:
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.
If the president contests the declaration, Congress is left to decide. The 25th Amendment provides that if 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.
In 2002, President George W. Bush voluntarily gave his power to Vice President Dick Cheney when undergoing surgery. However, Section 4 of the 25th Amendment has never been invoked. Given the high bar established under the Constitution, it is unlikely to be invoked against President Donald Trump. Not only would Vice President Mike Pence have to be on board, but Congress would also have to approve.
Donald Scarinci is a managing partner at Scarinci Hollenbeck—read his full bio here.
