The Growing Probability of the Use of the 25th Amendment

The following post was submitted by Cheyenne Garret of the University of Missouri – Columbia:

Talk of possible mechanisms for the removal of President Donald Trump from office has extended beyond impeachment to removal through the 25th Amendment. The concept of impeachment is fairly familiar in American politics, and so it is no surprise there has been chatter about how to go about impeaching the current President. Fewer Americans understand the process defined in the 25th Amendment of the Constitution, but some are taking a closer look in hope of finding a more practical means of removing the President.

Article II, Section 4 of the United States Constitution states that, “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and [c]onviction of, [t]reason, [b]ribery, or other high [c]rimes and [m]isdemeanors.” This clause is generally thought to allow for impeachment and removal for abuses of power – treason, bribery, or other misdeeds related to the office and power that comes with it.

On the other hand, Section 4 of the 25th Amendment 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.

Section 4 goes on to outline the process by which the President can appeal this declaration.  If within a specified period, he certifies to Congress his ability to perform the office, Congress must determine whether the President is fit for office. If two-thirds of both Houses of Congress confirm that the President is unable to perform the duties of the position, he will be removed. Unlike the requirements for impeachment, removal through the 25th Amendment does not require some great mistake or corruption in leadership; instead, the 25th Amendment allows for considerations of fitness to govern.

Thus, the grounds for removing a president fall into two broad categories.  One basis for removal is impeachment for “high crimes and misdemeanors” which consists of treason, bribery, and other misdeeds related to one’s position of power.  Alternatively, the removal of a president may be justified based not on misconduct or misuse of influence, but on inability to perform the job of president. The most obvious example of an inability to perform the tasks required of the President would be physical or mental shortcomings. The first category is covered by the impeachment clauses, the second by the 25th Amendment.

While misconduct and misuse of Office may be in conflict with a national sense of the character and values a president should personify, these types of conduct do not make him incapable of performing the requirements of his position. A President who is suffering from mental deterioration seems to be the clearest candidate for removal under the provisions in the 25th Amendment.  For example, some argue that removal of President Reagan under the 25th Amendment should have been more carefully considered towards the end of his Presidency, when he was plainly beginning to suffer from the effects of the Alzheimer’s disease with which he was diagnosed after leaving office.

Because of the role of the cabinet and Congress in removing the President under the procedures laid out in the 25th Amendment, the political climate is an important consideration. Attitude changes and shifts in public rhetoric on Capitol Hill and among politicians also seem to signal a shift towards questioning the President’s general fitness rather than specific wrongdoings. The month of October was filled with examples of this trend, and Senator Bob Corker’s comments referring to the White House as an “adult day care center” may represent a growing willingness to speak out about the President’s fitness to govern. Just days later, details of Secretary of State Rex Tillerson allegedly referring to President Trump as a “moron”  became news. Senator John McCain’s later added a condemnation of  “… half-baked, spurious nationalism cooked up by people who would rather find scapegoats than solve problems.”  George W. Bush followed with comments on general value and attitude problems in our current political culture. Although Senator McCain and President Bush did not directly mention President Trump, many have interpreted these speeches as a condemnation of the President’s rhetoric and the political culture it has inspired. While these comments are less focused on the President’s fitness, in terms of capability, they call into question his awareness of the the hostile political environment he may be helping create. These comments may be most important for political reasons, in that they illustrate a potentially changing tide among the President’s supporters and the people who may ultimately determine his fate as President.

Democrats criticizing President Trump and whispering about impeachment are nothing new, but the new trend of powerful Republican politicians speaking out against the general political culture may suggest a growing Republican willingness to question the President’s fitness to govern. If so, the more likely avenue to the removal of President Trump may also be shifting from impeachment to removal on the grounds of questionable ability.

Even though removal through the 25th Amendment seems more appropriate than impeachment at this time, it is important to remember how extremely unlikely both are. Removal procedures in the 25th Amendment requires both a majority of the President’s own closest advisers and a two-thirds majority in Congress. These standards for removal are no more lax than impeachment; they merely involve different justifications for removal and replacement.