Calls to invoke a never- before-used section of the Constitution’s 25th Amendment prior to President Donald Trump’s concession Thursday evening would have been a difficult task, local experts said.
The provision allowing the vice president and Cabinet to declare the president “unable to discharge the powers and duties of his office” was written in response to concerns about physical disability, and would require legal argument to apply following the violent occupation of the U.S. Capitol this week, said Richard Seamon, professor of law at the University of Idaho.
“The standard for removing a president is really pretty daunting,” Seamon said.
Since ratification in 1967, the amendment has been invoked several times, but always by a sitting president who invests authority in his vice president during a medical procedure. Ronald Reagan designated George H. W. Bush as president during a medical procedure in 1985. George W. Bush designated Dick Cheney acting president twice during his eight years in office.
Never has the process played out in Section 4 of the amendment, which establishes the procedure that Trump’s Cabinet could take to declare him unfit for the office. Such a declaration would require Vice President Mike Pence and a majority of the 15-member Cabinet, which includes the heads of departments including Treasury, State and Veterans Affairs, to sign on and notify the president pro tempore of the U.S. Senate, Sen. Chuck Grassley, R-Iowa. Even before Trump acknowledged Biden’s victory on Thursday evening, Pence indicated through advisers that he did not support pursuing that option, and his agreement is required before any process could move forward.
The Cabinet has two vacancies , following the resignations of Transportation Secretary Elaine Chao and Education Secretary Betsy DeVos on Thursday. In addition, three members of the Cabinet are serving under an acting role, meaning they haven’t been confirmed by the Senate.
The Amendment states only that “a majority of either the principal officers of the executive departments” must sign on to give the vice president the authority of the president under an “acting” role himself. The Amendment also presumes that the president who is incapable or “unable to discharge the powers and duties of his office” would be able to inform the Senate that he is once again capable of doing so, reinforcing that the amendment – drafted and ratified after the assassination of John F. Kennedy in November 1963 – was intended to apply to physical ailments.
The language of the Constitution is also, of necessity, open to different perspectives, said Margaret O’Mara, a professor of history at the University of Washington who has studied the American presidency. That means any action could be legally challenged.
“It’s open to interpretation,” she said. “If it were invoked, it would create a precedent that would change the way we see the 25th Amendment.”
Washington Sen. Patty Murray, in a statement supporting efforts to invoke the 25th Amendment, called it “the most immediate way” to prevent “further harm.” However, Trump himself could immediately object under the terms of the Amendment, even after conceding the 2020 election. That would set up a scenario where Congress once again must decide, by a two-thirds majority, whether Trump is fit for office.
Seamon noted that such a bar is even higher than impeachment, which requires a majority in the House of Representatives and a two-thirds majority in the Senate.
“It just seems inconceivable,” Seamon said. “This is a really serious thing, a very high standard.”
Even if removed from office, Trump would not be prevented from running for the presidency again if the 25th Amendment were invoked. That’s not true of impeachment, where the Senate may decide whether to permanently disqualify the accused from seeking future political office as part of their deliberations.
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