With President Donald Trump growing increasingly erratic — nuclear button, anyone? — some lawmakers have expressed concern over his mental health. That brings the 25th amendment back into the spotlight. That provision allows for the removal of the president from office if the vice president and a majority of the cabinet deem him physically or mentally “unable to discharge the powers and duties of his office.” The 25th amendment purposely requires a high burden of proof, and that makes it complex to enact. Let’s break it down.
Experts have begun showing concern
Bill Kristol, editor at large of The Weekly Standard and one of Washington’s leading conservative voices, told Politico he feels growing concern. He tweeted: “I trust @VP has asked his Counsel to prepare a draft document transferring power in accord with Sec. 4 of 25th Amendment in case it’s suddenly needed, & that he’s discussed this with COS Kelly.” Pence did not confirm or deny the interaction.
Richard Painter, who served as chief White House ethics lawyer under President George W. Bush, also tweeted on Trump’s comments about North Korea. “This Tweet alone is grounds for removal from office under the 25th Amendment. This man should not have nukes.”
Next: Unfortunately, you cannot remove a president for tweeting.
Enacting the amendment requires a solid basis
According to Politico, Yale University psychiatry professor Dr. Bandy X. Lee recently briefed more than a dozen lawmakers on the signs she sees in the president. She pointed to Trump “going back to conspiracy theories, denying things he has admitted before, his being drawn to violent videos.” Lee also warned, “We feel that the rush of tweeting is an indication of his falling apart under stress. Trump is going to get worse and will become uncontainable with the pressures of the presidency.”
Other experts say it isn’t that cut and dried. “The 25th Amendment would require, for mental incapacity, a major psychotic break,” said former Harvard Law School professor Alan Dershowitz. “This is hope over reality. If we don’t like someone’s politics we rail against him, we campaign against him, we don’t use the psychiatric system against him. That’s just dangerous.”
Next: Regardless, some lawmakers have set the wheels in motion.
A group of lawmakers wants Trump evaluated
Maryland Democratic Rep. Jamie Raskin proposed a bill to set up a commission to evaluate the president’s fitness for office. Raskin’s bill would create a group to evaluate the president’s ability to serve. “The judgment [about the president’s mental state] is not mine to make,” the congressman told Politico. “The judgment constitutionally is to be made by the vice president and the Cabinet, or the vice president and a new body. We have an institutional responsibility to set that body up.” The bill, which has been percolating for a few months, now has 56 co-sponsors.
That said, the results of that evaluation may still not be enough. The section of the 25th amendment at play here involves some complicated language and no historical precedent exists for doing so.
Next: Here’s why the amendment poses a problem.
The 25th seems even harder than impeachment to enforce
This article from Brookings describes the process as “more difficult” than impeachment. Impeachment requires an investigation by a House committee of “high crimes and misdemeanors,” a vote in the House, a trial in the Senate, and a super-majority vote there. As Vox points out, the 25th amendment remains very hazy. It does not elaborate on what it means for the president to appear “unable to discharge the powers and duties of his office.” It does not even technically relate just to his health — physical or mental. Pence and the cabinet really hold a lot of power in deciding what the language says.
Next: Only three sections of the amendment have ever been used.
Watergate brought the 25th into effect
Section 1 came into play in 1973, when Richard Nixon left office and Gerald Ford became president, CNN notes. Section 1 formalizes the Tyler precedent, according to The Constitution Center. It confirms that when the president gets removed from office, dies, or resigns, the vice president takes over. Article II, Section 1, Clause 6 of the Constitution states that in “case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president.”
When President William Henry Harrison died in 1841, Vice President John Tyler invoked Article II, Section 1, Clause 6 to mean that he had became president. Although Congress accepted it, some disputed Tyler’s reading of the Presidential Succession Clause. The 25th amendment clears up the situation.
Next: The next section came into relevance during the Ford administration.
Section 2 of the amendment brought in the vice president
Gerald Ford also used Section 2 to bring Nelson Rockefeller on as his vice president. Section 2 requires the president to nominate a replacement vice president when that office becomes vacant. That appointment remains subject to confirmation by a majority of both the House and Senate. In 1973, Ford became vice president through Section 2, after Vice President Spiro Agnew resigned. When Ford took over the presidency the following year, he then used Section 2 to nominate Nelson Rockefeller to fill the resulting vacancy. This section of the amendment preserves the chain of command, in the event that either the presidency or vice presidency becomes vacant.
Next: This next section ensures someone occupies the oval at all times.
If the president cannot serve, this happens
Section 3 comes into play periodically when the president undergoes a medical procedure. As The Constitution Center clarifies, this provision allows the president to transfer authority temporarily, by submitting a written declaration that he remains “unable to discharge the powers and duties of his office.” Once he regains his health, the president can submit a second declaration “to the contrary.” President Ronald Reagan and President George W. Bush transferred authority to their vice presidents under Section 3 for a matter of hours while they underwent planned surgeries. That ensures that someone sits in the oval at all times, even when the president remains temporarily indisposed.
Next: The last section has never been used.
Section 4 of the 25th Amendment remains the most serious
The final section dictates what would happen if Trump became declared unfit to serve but refused to step aside. In that case, The Constitution Center explains, Vice President Pence and either a majority of the cabinet, or another body Congress designates, would decide. After it decides Trump is indeed unfit, Pence immediately becomes the acting president. If the president disputes the claim, the group has four days to decide to the contrary. If it does not do so, the vice president remains in the Oval while Congress votes on the matter. Trump only becomes divested of his duties if a super majority — or two-thirds — rules against him.
Next: This section almost came up once before.
Reagan almost lost his seat to the 25th
In early 1987, White House aide Jim Cannon became disturbed by reports from staffers about Ronald Reagan’s behavior. He wrote a memo in which he urged White House Chief of Staff Howard Baker to “consider the possibility that section four of the 25th Amendment might be applied.” Baker ultimately decided that Reagan did not fit the qualifications for the amendments’ usage. He subsequently remained in office for the remaining two years of his term. In hindsight, Reagan suffered from Alzheimer’s in his later years, and some argue he demonstrated early symptoms while in office.
Next: What prevents the cabinet from turning on the president?
This amendment looks an awful lot like a coup
It does, doesn’t it? Technically, the 25th amendment does involve the vice president and the cabinet all agreeing that the man who appointed them no longer deserves to stay in office. And technically, those people would have to do a 180 on their guy to do it. But Trump himself has demonstrated a serious lack of loyalty, so that looks more and more plausible. And experts agree, Trump and his governance is completely unprecedented.
“I think there is a subtext here that is unlike anything that I have seen in 50 years of being a reporter,” journalist Carl Bernstein said on CNN. “And that is that I am hearing from Republicans, and other reporters are as well, that there is open discussion by members of the president of the United States’ own party about his emotional maturity, stability.” He added: “We are in uncharted territory here.”
Follow The Cheat Sheet on Facebook!