Trump and The Intentions of the Twenty-Fifth Amendment to the Constitution

In the recent New York Times anti-Trump op-ed piece by a White House insider there was this interesting paragraph:

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 Twenty-Fifth Amendment to the Constitution is one that Main Street America rarely hears about, unlike the Second Amendment which guarantees the freedom to bear arms, the Fourth Amendment which guarantees the right to be secure against unreasonable searches and seizures, the Eighteenth Amendment which is best known for enforcing prohibition and the Nineteenth Amendment which gave women the right to vote.

The Twenty-Fifth Amendment reads as follows:

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.”

This amendment is designed to ensure the integrity of the office of President and the continuity of government in certain specific cases.

The need for the Twenty-Fifth Amendment became apparent after the deal of John F. Kennedy and prescribes the order for presidential succession, how a Vice President is replaced if he/she leaves office and the mechanism for removing a President from power if he/she is deemed unable to serve for the remainder of their term.  The Amendment was submitted to the states on July 6, 1965, was adopted by Congress on February 10, 1967 and signed into law by President Lyndon Johnson on February 23, 1967.  Interestingly, it took the 47 states that have ratified the Amendment 584 days to do so (from July 12, 1965 to May 25, 1967).  Three states have not ratified the Amendment; Georgia, North Dakota and South Carolina, however, since only three-quarters of states need to ratify an Amendment so that it becomes part of the Constitution, their ratification is not really necessary.

In the case of Donald Trump, it is the third and fourth sections of the Amendment that are key.  Let’s look at them in turn:

1.) Section 3: This section sets out the formal process for determining the capacity of the president to remain in office.  In this case, the President submits a written declaration to the President pro tempore of the Senate (currently Orrin Hatch) and the Speaker of the House of Representatives (currently Paul Ryan) that he/she is unable to discharge the duties of the office of President and that, until notified otherwise in writing, the Vice President will take over the duties as Acting President.  Prior to the signing of the 25th Amendment, nine presidents had experienced health issues that left them temporarily unable to fulfill the duties of their office; William Henry Harrison, Zachary Taylor, Abraham Lincoln, James Garfield, William McKinley, Woodrow Wilson, Warren Harding, Franklin Roosevelt and Dwight Eisenhower with six of these presidents dying while in office.  This section of the Amendment has never been used with the near exception of Ronald Reagan who was incapacitated while he underwent surgery for a gunshot wound that he received during a failed assassination attempt on March 30, 1981.  Even during that event, there was no designation of a replacement President.

2.) Section 4: This section, which has also never been used, sets out the process for removing a President that is deemed incompetent from office.  Unlike Section 3 where the President unilaterally determines their capacity, in Section 4, the Vice President and Congress have the ability to remove the President if, in their determination, he/she is unfit for office and unable to fulfill their duties.  The Vice President will then assume the duties of the President as Acting President, however, the President can still defend himself/herself as follows:

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 (currently 8 out of 15 Secretaries) 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 that purpose if not in session. If the Congress within twenty-one days after receipt of the latter written declaration, or, if Congress is not in 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.”

According to the Brookings Institute, it is procedurally more difficult to use the 25th Amendment to remove a President from office than it is to use the impeachment mechanism.  Impeachment requires a simple majority in the House and a two-thirds majority in the Senate.  The Twenty-Fifth Amendment requires a two-thirds vote in both houses.  Impeachment is also seen as a less palatable way to remove an ill President from office, particularly when that President has been perfectly functional up to that point in time.

As I noted above, Section 4 has never been used, although it was considered in 1987 when Ronald Reagan appeared to have lost interest in the job of President, was inattentive and indecisive.  As we now know, President Reagan was suffering from the early stages of dementia during the latter part of his second term in office.

If you are interested, here is a brief video which summarizes the Twenty-Fifth Amendment and how it can be used:

Given the ongoing controversy regarding the Trump presidency it will be interesting to see whether Donald Trump becomes the first President of the United States to experience Section 4 of the Twenty-fifth Amendment of the Constitution   It certainly appears as though at least some of his inner circle have considered its use.  

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