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by Causes | 1.7.21

What’s the story?

In the wake of the incursion on the Capitol by President Donald Trump’s supporters which delayed the certification of the Electoral College and the president’s response, lawmakers are calling for Vice President Mike Pence and the Cabinet to use the 25th Amendment to remove Trump from office.
Senate Minority Leader Chuck Schumer (D-NY) and House Speaker Nancy Pelosi (D-CA) each called for the use of the 25th Amendment in response to what Pelosi called “an act of sedition” by inciting the riot at the Capitol. Schumer added:

“The quickest and most effective way - it can be done today - to remove this president from office would be for the vice president to immediately invoke the 25th Amendment. If the president and the Cabinet refuse to stand up, Congress should reconvene to impeach the president.”

The call for invoking the 25th Amendment has already gained some bipartisan support, as Rep. Adam Kinzinger (R-IL) announced:

“Sadly, yesterday, it became clear that not only has the president abdicated his duty to protect the American people and the people’s house, he invoked and inflamed passions that only gave fuel to the insurrection that we saw here. When pressed to move and denounce the violence he barely did so, while of course victimizing himself and seeming to give a wink and a nod to those doing it. All indications are that the president has become unmoored not just from his duty, or even his oath, but from reality itself. It is for this reason that I call for the vice president and the Cabinet to ensure that the next few weeks are safe for the American people, and that we have a sane captain of the ship.”

Using the 25th Amendment to remove a president for an alleged behavioral or mental incapacity, rather than an evident medical disability (like a coma), would be a novel application of the amendment that would likely prove to be constitutionally and politically controversial.

What’s the 25th Amendment?

The 25th Amendment was ratified in 1967 in the wake of President John F. Kennedy’s assassination to address issues related to presidential capacity and the ability of the vice president to permanently or temporarily assume their duties. Momentum for the 25th Amendment began during the prior decade when President Dwight Eisenhower was hospitalized on three occasions, after which he worked out a public arrangement for Vice President Richard Nixon to assume his duties in the event of his incapacitation during the rest of his term.
Section 1 of the amendment clarifies that the vice president becomes president (not acting president) following the death, resignation, or removal of the president; Section 2 enables the president to fill a vice presidential vacancy by an appointment subject to confirmation by both chambers of Congress; Section 3 establishes a procedure for the president to voluntarily declare themself “unable to discharge the powers and duties” of their office; while Section 4 provides a process for cases in which the president is unwilling or unable to declare a disability that would be implemented by the vice president and either a majority of the Cabinet, or a majority of “such other body” Congress may establish by law.
Given that Section 4 deals with problematic situations where the president can’t or won’t declare their disability (such as during intermittent consciousness), the procedures are more complex. After the vice president and Cabinet (or the other body) inform Congress of the president’s incapacity, the vice president immediately becomes acting president.
Thereafter, if the president informs Congress in writing that no inability exists, they resume their duties unless the vice president and Cabinet (or the other body) declare the president unable to discharge their duties within four days, in which case the issue goes to the legislative branch. Congress would be required to convene within 48 hours for the purpose of assessing the president’s capacity even if it isn’t in session at the time.
Both the House and Senate would be required to vote on whether the president is unable to discharge their duties within 21 days of either the receipt of the president’s letter or Congress reconvening, with two-thirds majorities in both chambers required to declare the president unable to discharge their duties. If the vote succeeds, the vice president continues to serve as acting president, and if it falls short of the two-thirds threshold the president resumes their duties.

Could the 25th Amendment be used in this case?

Advocates for invoking the 25th Amendment to remove President Donald Trump from office argue he’s mentally unstable and therefore incapable of discharging his duties and upholding his constitutional duties.
Doing so would require the use of Section 4 of the 25th Amendment, which would be a novel use of the amendment because those arguing for its invocation are arguing a behavioral incapacity exists, rather than a medical disability (such as the president lapsing in and out of consciousness).
While Congress has considered creating the “other body” specified in Section 4 for assessing the president’s capacity in conjunction with the vice president as an alternative to the Cabinet, legislation introduced in recent years stalled, and it’s unlikely there is sufficient time to enact such legislation before President Trump’s time in office concludes on January 20th.
It’s unclear whether eight of the 15 members of the Cabinet would be willing to declare that a presidential incapacity exists in this case. While Transportation Secretary Elaine Chao resigned due to the “traumatic and entirely avoidable” riots at the Capitol, other officials have indicated they intend to stay in office until Inauguration Day to help with the presidential transition.
Congress is scheduled to be out of session until the week of President-elect Joe Biden's inauguration, but could easily be back in session with 48 hours of notice if the 25th Amendment were invoked and President Trump contested the hypothetical declaration of Vice President Mike Pence and the Cabinet that he was incapable of discharging his duties. It's unclear whether could be forced prior to Inauguration Day, given that Section 4 gives Congress up to 21 days before a vote has to occur and the issue would become moot with Biden's inauguration.

How has the 25th Amendment been used in the past?

The 25th Amendment has been invoked six times since its ratification, three of which were related to vacancies in the office of the president and vice president during the administration of President Richard Nixon.
Its first use occurred in 1973 when Vice President Spiro Agnew resigned and Nixon appointed Gerald Ford to replace Agnew. It came into play twice in 1974: after Nixon’s resignation and Ford’s elevation to president, then for Ford’s nomination of Nelson Rockefeller to fill the vice presidential vacancy.
The three most recent invocations of the 25th Amendment resulted in the vice president becoming the acting president while the sitting president underwent medical procedures requiring anesthesia.
President Ronald Reagan transferred power to Vice President George H.W. Bush in 1986 while he underwent a colonoscopy, but did so while taking steps to avoid creating a binding precedent for his successors.
President George W. Bush underwent a colonoscopy in 2002 and transferred power to Vice President Dick Cheney for two hours, and did so again for another colonoscopy in 2007.

— Eric Revell

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