The 25th Amendment

Practically since the November 6, 2016 election, folk on the Left have been talking about using the 25th Amendment to remove Donald Trump.  They know they don’t have the votes for impeachment in the House, and certainly not for removal from office by conviction in the Senate so they present this as an end run around that problem.

The problem with that is that they are picking a method that’s actually harder than impeachment.  Allow me to explain.

Amendment XXV
Section 1.
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.
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.

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.

The first couple of parts, motivated by the assassination of John F. Kennedy, deal with the succession of the Presidency clarifying some issues left undefined in the Constitution.  Part 3 makes provision for the president to resign office if, for whatever reason, he believes he is incapable of discharging his duties as president (exercised by Richard Nixon in the wake of the Watergate cover-up scandal).

Part 4 is the one that the Left makes so much of, specifically the first paragraph:

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.

Ah hah! They say, they can get the VP and a majority of the Cabinet to agree that the president is unable to discharge his duties then…

Excuse me?  The Cabinet appointed. by. Trump. is going to declare Trump unfit basically because you don’t like his politics?  That strikes me as a tad…delusional. (Sorry.  I tried to find a softer word but none really fit.)

But let’s go with that just to see where it leads.  The VP and 8 cabinet members all agree that Trump has got to go and send a declaration to the Speaker of the House and the President Pro Tempore of the Senate to the effect.

The folk touting a 25th Amendment removal of the President seems to think it stops there.  But if you continue into the second paragraph you get:

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:

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.

So…for the 25th Amendmenters, there’s still a chance, right?  Well:

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 there is a dispute between the cabinet plus VP and the President on whether or not he’s able to exercise the powers and duties of the Presidency, it goes to Congress which requires a 2/3 majority of the House and a 2/3 majority of the Senate to remove the President.  Note that for impeachment you do need a 2/3 majority in the Senate for conviction and removal from office but you only need a simple majority in the House to impeach.  In short, unless the President willingly acquiesces or is incapable of communicating his disagreement with the assessment it’s actually harder to remove a President via the 25th Amendment than it is to simply impeach.

That’s if you get the VP and Cabinet to agree in the first place.  That “of such other body as Congress may by law provide” that could, in principle make such a declaration instead of the cabinet?  No such body exists.  Congress could, perhaps, create one.  But “by law” means passing a law.  That means passing both houses and either getting a Presidential signature to make it law or overriding a veto–and we’re back to 2/3 of the House and 2/3 of the Senate again.

When people want to use something like the 25th Amendment it would behoove them to read it, and read it all the way through.

Advertisements

3 thoughts on “The 25th Amendment”

      1. That’s what happens when you have a large proportion of affirmative action lawyers who should have never been graduated, the fly by night for profit law schools, and the dumbing down of general education.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s