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Saturday, January 20, 2018

Reprinted with permission from AlterNet.

 

Democrats and Republicans who are desperate to end Donald Trump’s presidency are looking with renewed interest at the U.S. Constitution’s 25th Amendment, which provides a path for the vice president, Cabinet and Congress to remove a president if he is deemed “unable to discharge the powers and duties of his office.”

“The 25th Amendment is back on the table,” blared Politico.com. “D.C. pundits are contemplating it. Cable news shows are talking about it. And in a recent television interview, Michael Wolff…has much of the free world agonizing over the possibility that President Donald Trump is mentally unfit to be chief executive.”

“If we’re being specific, what we’re talking about is Article 4 of the 25th Amendment,” echoed CBSNews.com. “Thanks to author Michael Wolff, whose recently published Fire and Fury: Inside the Trump White House has rocketed to the top of bestseller lists, we’re talking about Article 4 once again.”

Is this a serious possibility or an escapist fantasy? Beyond a rash of articles that recite histories of incapacitated presidents, medically and mentally, what would it look like today if we acted on the 25th Amendment? What likelihood exists that the executive branch and Congress would seize the chance?

In short, it’s a tantalizing but legally unfounded and politically impractical remedy, constitutional scholars say. But it is understandably appealing as Trump’s second year begins.

“Who’s to say where our political melodrama will end?” author Jon Meacham asked in Time. “It’s highly unlikely, but this unprecedented presidency could lead to unprecedented constitutional ground: the invocation of the boring-sounding yet world-shaking Section 4 of the 25th Amendment—a provision that enables the Vice President, with a majority of members of the Cabinet, to declare the President unable to discharge his duties, thus installing the Vice President as acting President pending a presidential appeal to, and vote by, the Congress.”

Meacham’s report is filled with tidbits that attest to the appeal of a silver bullet solution. He begins with prescient quotes from the debate on the U.S. House floor on April 13, 1965, when Congress drafted and approved the amendment, which was ratified in 1967.

“He couldn’t have put it more plainly,” Meacham opened. “In the midst of a congressional debate over the proposed 25th Amendment to the Constitution dealing with presidential succession and incapacity, the chairman of the House Judiciary Committee, Representative Emanuel Celler of New York, dispensed with high-minded legal arguments. They were there, Celler said, to figure out what might be done if the unthinkable—a deranged American President with nuclear weapons—became thinkable. ‘The President may be as nutty as a fruitcake,’ Celler declared on the House floor. ‘He may be utterly insane.’ And for this reason, America needed a plan.”

As relevant as that sounds, the Congressional Record of that debate also contains a personal speech by Rep. John McCormack, D-MA, who was Speaker of the House and third in line for the presidency following President Kennedy’s assassination. McCormack offered equally telling hints about why a sitting vice president and the Cabinet would almost never invoke it, which also resounds today. This part of the story wasn’t included in Meacham’s tantalizing tome. But before hearing those words, let’s pause to understand what the amendment’s fourth paragraph says.

The first three paragraphs concern presidential succession and filling the vice presidency if a president dies or resigns. This also includes transferring power to the vice president if the president undergoes surgery, which happened under Ronald Reagan and George H.W. Bush.

“Section 4 is where things really get interesting,” Meacham continues. “That provision, wrote John D. Feerick, a legal scholar and a key architect of the amendment, ‘covers the most difficult cases of inability—when the President cannot or refuses to declare his own inability.’ The modern framers contemplated nightmare scenarios as they drafted the amendment, including, Feerick recalled, ‘situations where the President might be kidnapped or captured, under an oxygen tent at the time of enemy attack, or bereft of speech or sight.’ One Section 4 scenario: an emergency medical situation during which the President was unconscious or disabled for a period of time (a coma, for instance). It was clear from the debates at the time of adoption and ratification, according to Feerick, that ‘unpopularity, incompetence, impeachable conduct, poor judgment and laziness do not constitute an ‘inability’ within the meaning of the amendment.’”

One can begin to see where the clear-cut conclusion that the president is nuts and must go gets foggy. Then comes the actual procedure, in which the vice president and a majority of the Cabinet must agree and tell the leaders of the House and Senate in a letter that the president cannot carry out his duties. Such a declaration triggers what would be a monumental national crisis and political fight.

“If this happens, the Vice President becomes acting President,” Meacham explained. “If the President in question disagrees about his incapacity, he can, in writing, immediately reassume office. In this constitutional tennis match, the Vice President and the Cabinet majority then have four days to decide whether to reassert the claim of incapacity. If they do so, the Vice President again becomes acting President. Congress then takes up the issue, where a two-thirds vote in each house, within 21 days, would be necessary to sustain the acting President.”

In today’s political world, one learns never to say never. Even so, academics like Cornell Law School’s Michael Dorf, writing on TakeCareBlog (which is named after the Constitution’s Article Two, in which the president swears to “take care that the laws be faithfully executed”), said the votes are not there, though the blog supports Trump’s ouster.

“There is virtually no chance that Donald Trump will be removed from the presidency via the 25th Amendment,” he wrote, “based on his past conduct or his inevitable future conduct of a similar sort; and (2) absent irrefutable evidence of crimes on the order of cannibalistic murder personally committed by Trump, there is also virtually no chance that Trump will be removed from the presidency via impeachment, even assuming a strong midterm wave election in which Democrats take the House and the Senate, because Republicans will still have enough votes in the Senate to block removal.”

“That is the reality, because it is now clear that there are very few Republicans willing to stand up to Trump when it really matters,” Dorf continued. “I suppose that it is possible that a sufficient drubbing in the midterm elections could change that—which is why I hedged a bit by saying ‘virtually’ twice in the prior paragraph. For practical purposes at least for now, both impeachment and invocation of the 25th Amendment—no matter how justified—are a mirage.”

Indeed, there may be no greater example of a political party that’s eager to put partisan gain before country than today’s Republicans. In the executive branch, Vice President Mike Pence constantly fawns over Trump, and Cabinet meetings frequently begin with recitations by Trump’s appointees telling the president how wonderful he is. Would these sycophants somehow secretly conspire to fire the boss?

Moreover, Burt Neuborne, one of the nation’s foremost civil liberties experts and founding legal director of the Brennan Center for Justice at NYU Law School, said the populist notion that the 25th Amendment could spare the country the rest of Trump’s term is mistaken.

“As a matter of theory and practice, the 25th Amendment is—and should be—a blind alley for dealing with the 45th President,” he wrote in an e-mail from UC Berkeley Law School, where he’s teaching a seminar on Trump and the U.S. Constitution.

“It is not intended to displace an elected president for eccentricity or bizarre behavior,” he continued. “Real democracies do not label disfavored political activity as crazy, and then move against it legally. That’s how totalitarian regimes deal with ‘aberrational’ political behavior. The people elected Trump knowing that he is a narcissistic, ignorant, short-tempered bully with the attention span of a gerbil. The 25th Amendment is not a vehicle for buyer’s remorse.”

And practically speaking, Neuborne concurred that the congressional votes aren’t there to make it stick.

“In any event, as a practical matter, the 25th Amendment is unavailable,” he wrote. “It requires a majority vote of the Cabinet, backed up by a two-thirds vote of the House if the president objects. I attribute the current vogue for the 25th Amendment as a particularly intense way to channel arguments that Trump is unfit to be president. That’s a fair political argument as long as people don’t confuse it with a real avenue for removing him.”

Finally, there’s former Speaker of the House John McCormack’s words from the April 13, 1965, debate before that chamber passed the proposed amendment. Beyond its intent and the large majority needed in the Cabinet and Congress to oust a president was something else: what those high officials would be thinking before doing this.

“I can assure you, as the one who for 14 months was next in line for the presidency, that I know I could never have made the decision” to invoke the Amendment, he said, referring to the period following Kennedy’s assassination.

“There are so many human considerations involved,” McCormack continued. “For example, my motives might be impugned. Also there could be the feeling that I might be involved in a quest for personal power. As a result of those considerations, and others, I would have great difficulty in making the decision myself, because I could appreciate the fact, and picture the fact that the whole legitimacy of government, if I were in the White House, would be clouded and could be affected very seriously.”

Trump’s minions don’t appear to have the guts to cross this line. And Congress is unlikely to sustain it if they did.

 

Steven Rosenfeld covers national political issues for AlterNet, including America’s democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

 

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