The 25th Amendment and Democratic Contituionalism

President Trump should take some comfort in the fact that, for all the foolish talk and Washington gossip suggesting some rash, high-level scheming about invoking the 25th Amendment, that Amendment itself is actually very scrupulous about protecting presidential power. It would, in fact, be more of a challenge to employ the 25th Amendment against a healthy and functioning president than it would be to impeach him. And that is as it should be in our society. Adopted in the 1960s to address a real, if thankfully usually only hypothetical, problem, the 25th Amendment was never intended to become a vehicle for subverting democratic constitutionalism.

The Twenty-fifth Amendment was submitted by Congress to the states on July 6, 1965, and was adopted as part of the Constitution on February 10, 1967. Those dates tell us a lot about the amendment's historical context and intended purpose. In the wake of the Kennedy assassination (and in the anxious context of the Cold War with its assumed need for permanent readiness), there was renewed concern about the vacancy in the office of Vice President, highlighted by the old age of the then Speaker and Senate President pro tem (the two next in line for the Presidency according to the 1947 Presidential Succession Act), The circumstances of Kennedy's assassination also highlighted concerns about possible presidential disability, a concern already on the table thanks to President Eisenhower's health crises in the 1950s and the memory of Woodrow Wilson's even worse health problems in 1919 and after. Those examples illustrate the kinds of situations the framers of the Amendment (and the general public) had in mind when worrying about presidential inability.

Section 1 of the Amendment settled the old debate (dating back to John Tyler's assumption of the title of President in 1841) and declared that the Vice President becomes President (not just Acting President) if a President dies, resigns, or is removed from office. Section 2 provided a mechanism for selecting a new Vice President whenever that office might become vacant. That provision has been invoked twice since - replacing the resigned Spiro Agnew with Gerald Ford in 1973 and then, after Ford's assumption of the Presidency upon Nixon's resignation, filling the vacancy with Nelson Rockefeller. Obviously no one anticipated Watergate in the mid 1960s, but it proved a stroke of luck that this provision was adopted, making the Watergate crisis somewhat easier to resolve.

Section 3 and Section 4 deal with the potentially much more confusing situation of presidential disability. Section 3 allows a President voluntarily to transfer  his powers to the Vice President temporarily until the President is again able to resume them. (Fans of The West Wing will remember President Bartlet invoking that provision after his daughter had been kidnapped.) Section 4 provides a mechanism for the Vice President and the Cabinet do do this in a case where they believe the President is genuinely disabled in some way and cannot or will not do so himself. 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. It then goes on to specify how the  President can challenge this and get his powers back and how Congress is to adjudicate such a dispute.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 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.

Section 4 has never been invoked. and, for all the persistent chatter about invoking it, I doubt it ever will - apart from the rare kind of case it was obviously intended to apply to, i.e., a President physically or mentally disabled as Woodrow Wilson may have been after his stroke or John F. Kennedy might have been had he physically survived his shooting. To invoke it in any other case would suggest a situation in which the President's own chosen Vice President and Cabinet (all of whom, except for the Vice President, he could legitimately and freely fire at will at the first hint of their opposition to him) would gang up on him in what might best be termed a Cabinet Coup. What extreme level of political dysfunction would be required for such apocalyptic disloyalty on the part of the Vice President and the Cabinet? And, assuming such an unlikely development, wouldn't the President fight back? The Amendment requires a two-thirds vote in each house of Congress to support the Vice President and the Cabinet in such a conflict with the President. That is, of course, a higher threshold than the majority vote required for the House to impeach a President and the two-thirds in the Senate to convict. Apart from evident physical or mental illness, the obvious and appropriate avenue to remove a seriously misbehaving president  (not just a president one disagrees with) is that provided by the original constitution - impeachment in the House, and trial and conviction in the Senate - difficult but easier both procedurally and politically.

Impeachment and Trial is a seldom used but comprehensible political process, properly reserved for the most serious situations. A misguided, politically motivated impeachment such as that attempted by the Republicans against President Clinton twenty years ago was rightly rejected by the voters who recognized its political impropriety. A misguided 25th Amendment Cabinet coup would, if anything, be infinitely more problematic. And imagine its effect upon the President's supporters, who are already alienated from a political system they perceive as stacked against them and in favor of Washington elites?

Several federal judges have been successfully impeached and removed from office, and it is not hard to imagine that even more may be in the future. They are, after all, unelected potentates with life-long tenure against whose misbehavior there is no other legal recourse but impeachment. A president, on the other hand, is elected for a limited term. Apart from "treason, bribery, and other high crimes and misdemeanors," for which impeachment is appropriate and apart from obvious physical or mental disability for which the 25th Amendment is indicated, the appropriate answer to a problematic president is electoral defeat if he runs for re-election and in the meantime maintaining a strong and powerful opposition in control of Congress. The occupant of the White House and the composition of Congress are ultimately in the people's gift. They are decisions that ought to rest with the voters, not with bureaucratic cabals however well-intentioned. That is what democratic constitutionalism demands of its citizens.