By Jonathan Bernstein
Donald Trump has amply demonstrated he is not fit for the office he holds. But it would be a grave mistake to use the mechanism of the 25th Amendment to get rid of him, as a wide group of liberals have urged for a while, now joined by conservatives such as New York Times columnist Ross Douthat.
Sorry, Congress: If you believe Trump needs to go, you’re going to have to do it yourselves. At least if the goal is to protect democracy in the United States.
The 25th amendment was adopted in 1967 as a remedy to several imperfections in the constitutional order of succession of the presidency by (among other things) finally making it a constitutional fact that vice-presidents are supposed to fill presidential vacancies and providing for filling any vice-presidential vacancy. The last two sections dealt with the Woodrow Wilson problem: What if the president should become incapacitated? Section 4, the relevant piece here, allows a majority of the cabinet to remove the president upon certifying that he or she cannot perform the duties of the office. The next bit, however, is a mess:
“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 principle 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 Cabinet certified that Trump was unfit, and he then told Congress he was just fine, Congress would take a vote with a two-thirds standard to keep him removed.
Now, why shouldn’t this be used against Trump?
I’ll put aside the untried and unexplored nature of the provision, although just looking at it I can imagine multiple questions, potential loopholes, and challenges available to Trump if it’s used against him.
The main reason not to use it is that the chief complaint against Trump is that he threatens U.S. democracy not (chiefly) by breaking laws, but by undermining the norms that are just as important to democratic governance as the laws and constitutional provisions. Therefore, efforts to remove him should be especially careful to abide by those norms. The 25th Amendment is for use in Wilson-like cases in which the president is truly incapacitated. While mental illness could qualify, the many armchair diagnoses we’ve seen of Trump simply do not clear the constitutional bar.
Douthat argues that Trump is so childlike that he is somehow incapable of actions which reach the level of “high crimes” for which the proper constitutional remedy is impeachment. Hogwash. Trump may or may not understand that what he’s doing is wrong, but there are at least three articles of impeachment which could be drafted. The easiest one is obstruction of justice, based on his efforts to kill off the investigation into the Trump-Russia scandal. The second is his violations of the emoluments clauses of the constitution, his use of his position to enrich himself (through, for example, constantly advertising his properties), and the conflicts that arise when the interests of his business clash with the obligations he took by swearing the oath of office (he is exempt from criminal statutes, but not from the conflicts themselves). And it shouldn’t be hard to put together an abuse of power article as well for a president so dismissive of constitutional norms.
Should such charges be brought in the House? That remains a political question; suffice it to say that there is surely sufficient misconduct here to serve as a valid pretext should Congress believe that removal is necessary. No ugly new precedent would be established; no norms would be shattered. No future president would be given any additional reason to fear being deposed just because his or her Cabinet decided they preferred the vice president, and therefore no future president would have to choose them with that fear in mind. That’s why if the threat of Trump is so great, the best remedy is the old-fashioned constitutional one.
Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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