Stop Talking the the 25th Amendment…It Won’t Work….

It requires the cabinet members to depose their boss…

It ALSO give the boss time to fire them before Congress could act….

Forget it….

Jonathan Berstain @ goodpolitics 

Alas, for all those who talk about the 25th Amendment: It’s just not designed for this kind of situation.

To review: The 25th Amendment was a Cold War device written because people were scared about the possibility of the nation needing to react quickly during a period when the president was unable to do so. What we’re interested in here is the never-used, at least so far, fourth clause.2 The first paragraph is what people think of when they want to “invoke the 25th”:

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.

Straightforward, right? More or less. It’s really meant for, or at least most appropriate for, a situation in which the president is utterly incapacitated (say, in a coma) and unable to voluntarily (per the third clause) turn things over to the vice-president. Or for that matter to just resign. It’s less likely to be useful when the president opposes the effort. After all, it requires people chosen by the president – people who could be removed by the president – to insist over his or her objection that the vice-president should take over.

Indeed, if we imagine a scenario in which the vote is a close one, it’s not clear from the text what would happen if the president announced that (say) the disloyal Secretaries of HUD, Education, and HHS were all fired effective immediately, and the loyal Secretary of Energy was now the acting replacement for all three of them. Also, what if the VP sticks with the president but is outvoted by the cabinet? The VP might be officially the acting president but not de facto president. Not exactly a great situation. Especially if the president is in fact unfit to serve.3

In other words, it seems like a clear procedure, but in a contested case it might rapidly get very complicated, with no obvious method for rapidly resolving who was legitimately entitled to the Oval Office.

But if that’s dicey, the second part is even worse:

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

So if the VP and cabinet invoke the 25th, and Trump (I’ll switch to using him as the example) tells Congress he’s just fine, then basically all hell breaks loose.

First of all, Congress has three weeks to vote, which seems like an awful long time to have two different people both claiming to be the legitimate president.

Second, the bar for keeping Trump on the sidelines is two-thirds of both chambers, a higher bar than that required for impeachment and removal (which only requires a simple majority in the House).

Third, Trump would still be the president; only the “powers and duties of his office” would be gone. If he insisted on staying in the White House, and even working out of the Oval Office, it’s not clear that the VP could do anything about it, and at the least it would be an ugly fight on top of the main event in Congress.

And fourth, there are no limits to the iterations involved. Again, the president remains president regardless. So in the unlikely event that Congress votes to remove him, he could (as far as I can see from the text) re-notify them that he’s okay, and force another vote. And another. And another. Meanwhile, if the vote fell short and Trump was reinstated, the VP and the cabinet could re-declare him unable to serve, and then Congress would have to vote again, with the powers and duties of the office ping-ponging back and forth.4

Basically, invoking the 25th against the president’s wishes is a total mess, and certainly no substitute for impeachment and removal.

Which, again, requires the support of a lot fewer people…..

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