Shortly after the 116th Congress was sworn in, MSNBC’s Joe Scarborough called for President Trump’s removal from office by invoking the 25th Amendment to the Constitution. It’s not that easy. As a former Congressman Joe should know better.
The 25th Amendment was approved by Congress in 1965 and ratified by the states in 1967. The purpose of the 25th Amendment was to ensure procedures were in place that prevented the country from being leaderless if the president was unable to carry out his duties. It was also designed to be a temporary provision.
Specifically, the amendment was designed to fix language in Section 1 Article II of the Constitution, which said, “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 to the Vice President.” The problem was that there was no process for determining “inability to discharge the powers and duties of the said office,” and whether a transfer of power to the vice president would be temporary or permanent. There were three incidents in our history that illustrated this ambiguity.
In 1841 President Harrison died, and VP Tyler determined that he was actually the president – that he held not just the powers but also the office. Tyler’s decision created another question that manifested itself later: If the death of a president meant the vice president permanently becomes president, would this also be the case if the president was unable to discharge his powers?
In July 1881 President Garfield was shot and lived for 79 days before he died. Vice President Arthur did not step in to become president, because the Attorney General ruled that doing so would be permanent, based on Tyler’s precedent in 1841. Arthur did not want to appear power hungry, and he reasoned that if Garfield recovered from his injuries, Arthur would have to return presidential power to Garfield. So for approximately three months, no one was acting as president.
In 1919 President Wilson had a stroke and was incapacitated for several months. With doubts about the permanent nature of his decision, Vice President Marshall opted not step into the role of president in the hopes Wilson would recover. With no one at the helm of government for nearly six months Congress rejected President Wilson’s proposal to join the League of Nations.
The 25th Amendment has four sections. Section 1 is the most familiar – if the president dies, the vice president becomes president. Section 2 addresses the vacancy of the vice president’s position. Section 3 states the vice president becomes Acting President if the president notifies the House and Senate in writing that he is unable to discharge his duties. The President can reclaim his duties after informing the House and Senate he is able to resume power. All three of these sections have been implemented in recent history.
When speaking of removing the president using the 25th Amendment, pundits are actually referring to Section 4 of the amendment, which has never been invoked and was designed to be temporary. Section 4 states,
“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 means the vice president and a majority of the cabinet must declare in writing to the House and Senate that the president is “unable” to discharge his duties. The key word “unable” was left intentionally vague.
Section 4 allows the president to declare in writing to the House and Senate that his inability to serve no longer exists, allowing the president to reclaim power:
“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…”
The president’s declaration can be challenged by the vice president and a majority of the cabinet if they believe the president is still “unable,” and the issue then goes to Congress. A 2/3 vote of the House and Senate is required to make the stipulations of the president’s inability to serve permanent. If the 2/3 vote threshold is met, the vice president becomes Acting President. However, if the president declares again that he is “able,” the process starts over. There are also strict timelines that must be met for all of this to happen.
The 25th Amendment was not intended to replace impeachment, which is the constitutional provision for permanently removing a president. When compared to invoking Section 4 of the 25th Amendment, impeachment is easier in that it requires a majority of votes in the House and a 2/3 vote in the Senate to permanently remove a president. Representative Brad Sherman from California wasted no time – he introduced articles of impeachment on the first day of the 116th Congress.
While the President’s enemies continue to call for his removal using the 25th Amendment, his supporters can be assured this won’t happen. As for impeachment, good luck with that, Brad. The previous attempts to impeach President Trump have not worked either.
