The storming of the U.S. Capitol by supporters of President Donald Trump on Wednesday – while he remained dangerously silent for most of the day – has sparked talk of whether his administration should invoke the Constitution’s provision for peacefully removing a president from office without his or her consent based on incapacity.
That provision resides in the 25th Amendment, specifically Section 4.
The section enables the vice president and a majority of the 15 Cabinet secretaries to submit a letter to the speaker of the House of Representatives and the Senate pro tempore declaring the president to be “unable to discharge the powers and duties of his (sic) office.”
Upon delivery, the vice president immediately becomes “acting president” with all the powers and duties of the presidency.
The question for Vice President Mike Pence and the Cabinet is whether Section 4 could and should be invoked against a president who has no incapacitating disease and whose tenure ends in less than two weeks.
Constitutional law professor Mark Graber said Thursday that the answer is yes on all counts.
“I don’t think the 25th Amendment requires a diagnosis,” said Graber, who teaches at the University of Maryland Francis King Carey School of Law.
“What we saw (Wednesday) was a president unable to carry out the duties of office because he was unwilling” to speak out against the attack, Graber said. “It is very clear that when a president is no longer doing the job, the president is ‘unable’ to do the job.”
Invoking the 25th Amendment with just days left in Trump’s presidency would “in one sense (be) highly symbolic” but it could also protect the country in the days leading up to President-Elect Joe Biden’s inauguration on Jan. 20, Graber said.
“What Trump demonstrated (Wednesday) was a willingness to take the nation down,” Graber said. “Is it worth it to say ‘you are no longer president (now)’ or is it best to just wait it out two weeks?”
Pence and at least eight of the 15 Cabinet secretaries could conclude that “this person could trash the White House. Get him out,” Graber added.
Invocation of the 25th Amendment can occur quite quickly, as Pence would assume presidential duties once the letter from him and the Cabinet secretaries is delivered to House Speaker Nancy Pelosi, D-California, and Senate President Pro Tempore Charles Grassley, R-Iowa.
Delivery of the letter would effectively end the Trump presidency because his term would expire before his power and duties would be restored based on the amendment’s timeline.
Under Section 4, the president can respond with a letter to the speaker and pro tem asking for his old job back, at which time the vice president and the Cabinet majority would have four days to reiterate their declaration in a message to the two congressional leaders.
Upon receipt of that letter, Congress would have 21 days to vote on whether the president gets his or her job back, which would be beyond Jan. 20.
The president would return to office unless two-thirds of both the House and Senate conclude that he or she is unable to do so, at which point the vice president would continue to serve as “acting president.”
Civil-procedure professor Kimberly Wehle likened the 25th Amendment to a preliminary injunction or temporary restraining order issued by the vice president and Cabinet majority that bars the president from exercising authority until Congress reviews the restriction and votes on whether to keep it in place.
The Wednesday attack and the possibility of more violence unchecked by Trump provide sufficient evidence and concern to invoke the amendment’s injunctive force, said Wehle, who teaches at the University of Baltimore School of Law.
“The country is potentially at risk from domestic terrorism,” Wehle said. “If it (the 25th Amendment) is not used now, we should just get the black Sharpie out and delete it from the Constitution.”
Wehle noted that Pence and the Cabinet officials who would invoke the 25th Amendment were selected by Trump but said their first duty of loyalty must be to the country and not the president.
“This is a moment when they have to do what is the right thing to do as public servants,” Wehle said.
To prevent presidential loyalty from trumping the nation’s best interest, Section 4 enables Congress to create a panel to decide whether the president should be removed rather than leave that determination to the vice president and Cabinet members in the first instance.
Congress, however, has not created such a panel, though one has been proposed by U.S. Rep. Jamin B. “Jamie” Raskin, D-Md.
Raskin’s proposed 17-member Commission on Presidential Capacity to Discharge the Powers and Duties of the Office would consist of eight physicians, including four psychiatrists; and eight former high-ranking executive branch officials, such as a former president, vice president, secretary of state, attorney general, treasury secretary, defense secretary or surgeon general. These 16 members would select a 17th member to serve as commission chair.
In an emergency, the Senate and House could pass a concurrent resolution requiring the commission to examine the president to determine his or her capacity and report its findings – in coordination with the vice president — to Congress, under Raskin’s bill. If incapacity is found by the commission, the vice president would become acting president.
The bill, which Raskin introduced in 2017 and 2020 and has more than 30 Democratic co-sponsors, has not been passed by Congress.
“In times of chaos, we must hold fast to our Constitution,” Raskin, a former longtime constitutional law professor, said in reintroducing the bill in October. “The 25th Amendment is all about the stability of the presidency.”
The amendment was spurred by the attention given presidential succession following the Nov. 22, 1963, assassination of President John F. Kennedy and swearing-in of his vice president, Lyndon B. Johnson, that same day. Congress approved the amendment on July 6, 1965, and it was ratified on Feb. 10, 1967.
Section 1 of the amendment expressly states that the vice president becomes president upon the president’s death or resignation, which was the practice but had not been stated in the Constitution.
Section 2 enables the president to nominate a vice president if that office becomes vacant during the presidency. The president’s nominee takes office upon receiving a majority vote of both the Senate and House.
That provision was invoked in 1973 when President Richard Nixon nominated Gerald Ford following the resignation of Vice President Spiro Agnew. Ford, who became president after Nixon’s resignation in 1974, invoked Section 2 that year in nominating Nelson Rockefeller to be his vice president.
Section 3 enables the president to cede his or her powers to the vice president temporarily by submitting a letter to the speaker and pro tem stating that the president is unable to discharge the duties. The president can then reinstate his or her authority by submitting a subsequent letter under Section 3.
That provision has been invoked several times.
President Ronald Reagan temporarily ceded power to Vice President George H.W. Bush on July 13, 1985, while undergoing colon cancer surgery. President George W. Bush temporarily ceded authority to Vice President Dick Cheney in 2002 and 2007 while having colonoscopies.