An erratic president imperils the nation. The vice president and cabinet decide he can’t perform his presidential duties. They send a letter to the leaders of Congress saying that the president is being removed from office and the vice president is the acting president.
The president objects, says he’s able to do his duties. The vice president and cabinet disagree. The Congress must decide who’s right while the country holds its breath.
That scenario, which is mainly the stuff of political potboilers or overwrought television dramas, is now being bandied about as a possibility by critics of President Donald Trump, who say the incumbent is acting so erratically he can’t do his job.
The removal of a president is theoretically possible under the 25th Amendment of the Constitution, but Trump opponents should not get their hopes up. That section of the amendment has never been used before, and it would be tougher to remove a president that way than through an impeachment, constitutional law scholars contend.
“Fat chance,” said Hugh Spitzer, who teaches constitutional law at the University of Washington Law School. “I can imagine a situation where Trump would go off the deep end, but (removal) is probably not going to happen.”
First, a bit of history on the 25th, a little used amendment ratified in 1967.
Oversight by the Founding Fathers?
When the Founding Fathers wrote the Constitution, they didn’t get deep into the weeds about replacing a president for anything other than death, resignation or “inability to discharge the powers and duties of the office.” If that happened, those powers and duties “devolve” to the vice president, the Constitution says.
Death and resignation were pretty cut and dried. The only thing the Constitution says about inability to discharge is impeachment for “high crimes and misdemeanors,” which is in another section. It also doesn’t make clear what happens when things devolve. Does the vice president become the actual president, or is he or she just an acting president?
Most people assumed the vice president became president, because the only other task for the office in the Constitution is presiding over the Senate. No wonder Vice President John Nance Garner once said the job wasn’t worth a “bucket of warm urine” – in somewhat more colorful language.
The question didn’t come up until 1841, when William Henry Harrison died a month after taking office. When Vice President John Tyler said he was the president, some people weren’t so sure. Tyler quickly moved into the White House, took the oath of office and a precedent was set. But some people referred to him as “His Accidency” for the next four years.
Change a long time coming
Tyler served those years without a vice president, as did Millard Fillmore when Zachary Taylor died; Andrew Johnson after Abraham Lincoln was assassinated; Chester Arthur after James Garfield was assassinated; Theodore Roosevelt after William McKinley was assassinated; Calvin Coolidge after Warren Harding died; Harry Truman after Franklin Roosevelt died; and Lyndon Johnson after John Kennedy was assassinated. They all finished out the term of the president who died in office, without a vice president to replace them.
That could have been particularly troublesome in the case of Andrew Johnson, who was impeached with no vice president in place, but the Senate didn’t vote to remove him.
Another problem arose in 1919 when President Woodrow Wilson was incapacitated by a stroke. No one took over, partly because his wife and physician covered it up, but partly because there was no mechanism for Vice President Thomas Marshall to assume the duties.
Congress considered making changes off and on for decades. Kennedy’s assassination in 1963 provided the final push, Richard Seamon, constitutional law professor at the University of Idaho, said.
At the time, Johnson had no vice president. He’d previously suffered a heart attack; the speaker of the House, next in the line of succession, was 71; and the Senate president pro tempore, who is third, was 86. Two years later, Congress approved and sent to the states an amendment, with a first section that clearly states that when a president dies, resigns or is removed from office, the vice president becomes president.
The 25th in practice
That section has been used once: When Richard Nixon resigned, Gerald Ford became president.
The next section says when the vice presidency becomes open, the president nominates someone who must be confirmed by the House. That’s happened twice: Nixon named Ford vice president when Spiro Agnew had to resign. Ford named Nelson Rockefeller his vice president when he became president.
But the 25th doesn’t stop there. The third section sets up a system that allows a president who is temporarily incapacitated to send a letter to the speaker of the House and the president pro tem of the Senate naming the vice president the acting president. A fourth section allows the vice president and a majority of the cabinet to tell those two top congressional officers that a sitting president is “unable to discharge the powers and duties of his office” and temporarily turning power over to the vice president.
“It was really intended for those situations where a president has been in a terrible accident or has had a stroke,” said Jason Gillmer, constitutional law professor at Gonzaga University Law School.
The third section has been used three times. When Ronald Reagan underwent surgery for colon surgery in 1985, he temporarily transferred power to George H.W. Bush. When George W. Bush had a colonoscopy in 2002 and 2007, he temporarily transferred power to Dick Cheney.
The fourth section never has. When Reagan was shot in 1981, his vice president, George H.W. Bush, was not in Washington, D.C. Reagan was under anesthesia for an operation, but by the time Bush got back to the capital, Reagan was out from his anesthesia and there was no need to invoke the 25th Amendment.
The confusion, however, resulted in one of the more curious responses to assuming presidential control, with Secretary of State Alexander Haig declaring at one point, “I am in control here in the White House.” Critics pointed out he was farther down in the line of succession.
Potential for conflict
The acting president goes back to being vice president when the elected president tells the heads of Congress he or she is once again up to the job. That is, unless the vice president and a majority of the cabinet don’t think the president can do the job. If that were to happen, the House and Senate would both have to agree with the vice president and cabinet by two-thirds majorities for the elected president to remain out of power.
The only other action that requires two-thirds majorities in both chambers is a veto override, Seamon, of University of Idaho Law School, said. Even impeachment requires only a simple majority in the House to bring the charges, although it requires a two-thirds vote in the Senate to convict.
It’s possible, but not likely, Spitzer, the UW law professor, said.
“The Amendment has the steps, says what has to happen,” he said. “If they follow the steps … they have the authority to (impeach).”
But it also requires that a majority of people appointed to cabinet positions by Trump, as well as Vice President Mike Pence – who has been a strong loyalist ever since Trump chose him for the ticket – call for his removal. A super majority of both chambers, which are controlled by Republicans, would have to side with them if Trump were to object.
“Applying it to President Trump’s situation seems strange,” Seamon said.
It’s an amendment that gets little or no attention in constitutional law classes, all three professors agreed, and is not a subject of judicial debate. “It’s really straight forward. There’s not a lot of room for interpretation in terms of process,” Gillmer said.
Editor’s note: An earlier version of this story misspelled Gonzaga Law School Professor Jason Gillmer’s name, due to a reporter’s error. It also misstated Alexander Haig’s position in the Reagan administration.