The Twenty-Fifth Amendment can Disempower the President and Create Havoc

Invariably, every President who assumes office is threatened with removal at some point. This almost always involves impeachment, but only rarely do the efforts amount to anything more than a few political opponents introducing articles of impeachment that eventually die unmoved in the House of Representatives.

However, the election of Donald Trump has spurred a serious discussion regarding his removal from the onset of his presidency. It isn’t only concerns about Trump’s campaign contacts with Russia and Vladimir Putin that have initiated these discussions, but Trump’s odd and often unpredictable behavior.

When the removal of the President is discussed, it usually involves impeachment.  Two Presidents have been impeached: Andrew Johnson and Bill Clinton. Neither was removed from office because the Senate failed to convict. Conviction in the Senate requires a two-thirds vote; impeachment in the House of Representatives only requires a majority vote.

Even though impeachment is meant to occur as Article 2, Section IV of the Constitution states when “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” impeachment is often a political act. Both Presidents who were impeached came about by a House majority controlled by the opposite party. While Richard Nixon was not impeached, he resigned before a vote was taken, the House was also under the control of the opposing party at that time. The difference is that many Republicans broke rank from Nixon as the enormity of the Watergate cover up became apparent. Nixon did not stick around for a vote because he knew he did not have the support of his party.

Impeachment is not a quick process. It can take months of investigation and discussion. In the nuclear age, a President who is mentally or emotionally unstable would still hold all the powers of the office while an impeachment was proceeding. That is not a comforting thought.

There is another way that a President can be removed. It is much quicker and never before tested. It is Section 4 of the Twenty-fifth Amendment, ratified in 1967.

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.

Stripped to plain English, this means that the Vice-President and a majority of the Cabinet (8 of 15) can declare the President unable to fulfill his duties. Immediately upon presenting that decision to Congress, the Vice-President assumes power as acting President. The President can respond at any point thereafter that he is fit to resume office. The Vice-President and Cabinet majority can then challenge the President’s response by notifying Congress within four days that they deem him still unfit to serve. The Vice-President remains as acting President during that four-day period. If the Vice-President and Cabinet reassert that the President is unable to perform his duties, then Congress must take up the matter within twenty-one days of assembling and determine by a two-thirds vote that the President is not capable of resuming office.

Here is the kicker. Even after Congress determines that the President is unable to resume duties, the Vice-President remains only the acting President. The President can then re-initiate another twenty-one day cycle to be reinstated. That can go on until the President’s term expires.

Presumably, a President who is denied resuming office and becomes obstructionist will be impeached or persuaded to resign so that the carnival-like atmosphere of a President trying to reattain power will not go on for the remaining years of his term.

The only time this section of the Twenty-fifth Amendment was ever considered was in 1987 when Howard Baker assumed the position of Chief-of-Staff in the Ronald Reagan White House. Baker had been informed by his predecessor that Reagan was “inattentive,” “lazy” and “inept.” One day, Baker and his associates evaluated Reagan during a crowded meeting, but determined he was fit to continue his duties.

The Twenty-fifth Amendment clarified what had been an ambiguous clause of the Constitution that allowed for the removal of the President. It was never attempted earlier because of the ambiguity. The two times it could have been used was when James Garfield laid bedridden for eighty days after he was shot in 1881, and when Woodrow Wilson laid incapacitated from a stroke for the last eighteen months of his term. The advent of instantaneous communications and nuclear weapons in the twentieth century made this type of situation untenable. With the assassination of John Kennedy, the political will was put in motion to clarify an incapacitated President.

Now, in 2017, there has been a long-standing concern about the stability of Donald Trump stemming back to the time that he was a Presidential candidate. Many potential causes of impeachment have been raised from his business dealings to involvement with Russia. Just as disturbing is his emotional stability. A disastrous turn of events in his Presidency has raised the specter that Trump may come even more unhinged than he already is. A drawn out impeachment process could be a disaster in itself. When Richard Nixon was besieged by Watergate investigations, many of his advisers worried about his mental state. Trump isn’t even facing those consequences and many question his mental state. That is what makes the Twenty-fifth Amendment enticing. It’s implementation is immediate.

While Trump would probably view his removal from office by members of his own administration as a coup, it would not be one. Coups are illegal acts where a government is overthrown by force, not law. The removal of the President under the Twenty-fifth Amendment is empowered as law in the Constitution.

While the potential removal of Trump or any unwilling President under these conditions would create political havoc, the possibility that the President could continue challenging his removal for months or longer would create a Constitutional crisis, especially since Trump would be able to rally his supporters outside the normal media channels. His widespread use of Twitter is a potent propaganda tool. A sizable number of his followers have already shown themselves to be true believers likely to stand with him to the end.

Quite possibly, nothing will come of this and Trump will serve out his term as he grows more comfortable and competent in his job. However, his continuing penchant for chaos makes the two Constitutional means for his removal from office potential scenarios.

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Donald Trump Trashes the Constitution

Scene at the Signing of the Constitution of the United States.jpg

Public Domain (Wikimedia)

At the heart of the American political system is the Constitution. It is not perfect. It never has been. It legalized slavery. It prohibited equal rights to women. It created a crazy system to elect a President called the electoral college. Everyone has a favorite part to be amended. Yet, it has endured and been improved to allow the expansion of rights for those who were initially denied them.  It still isn’t perfect. Yet, when compared to the autocratic campaign promises of Donald Trump, it stands as a beacon.

President’s have often pushed the Constitution to its furthest limits. Lincoln freed the slaves in areas of rebellion by invoking his powers as commander-in-chief, effectively ending slavery before a constitutional amendment was passed making slavery unconstitutional. Many have conducted dubious constitutional actions, such as Jefferson’s Louisiana Purchase or Franklin Roosevelt’s internment of Japanese-Americans. Some, such as Andrew Jackson’s forced removal of the Cherokees or Lincoln’s suspension of the writ of habeas corpus, have even been overturned by the Supreme Court, then ignored by the President. However, no President has ever shown the absolute disregard and ignorance of the Constitution as candidate Trump.

Again and again, Trump’s comments on the Constitution are an outright declaration of war on the Bill of Rights.

Trump has repeatedly directed his ire against the First Amendment. He has suggested closing mosques. He has proposed religious and ideological tests for incoming immigrants. He has hinted at a national registry for Muslims. Trump has gone as far as banning all Muslims, although he changed that to banning them from geographic areas. That would be a first in American history. Even during the periods when racial bias affected American immigration policy, there never was a ban on religious affiliation. Besides violating “the free exercise of religion” in the First Amendment, his ideas also violate the First Amendment’s establishment clause and the Fourteenth Amendment’s equal protection clause.

Trump is no kinder when it comes to freedom of speech. He has proposed loosening libel laws to “win lots of money” for the times when newspapers get a story wrong and don’t print a retraction – or when he simply disagrees with their critical stories. Of course, the First Amendment stands in the way of that. There is another problem too. The federal government doesn’t have any defamation laws. Libel is a state determination. In addition to wanting to distort the Constitution, Trump doesn’t even understand how the government works.

Trump has also taken a position in favor of torture. There are international treaties that the United States is a signatory that ban torture. Of course, there is the Eighth Amendment that bans “cruel and unusual punishment” too. Torture would also violate the Fifth Amendment’s due process clause.

In the second debate, Trump promised to appoint a special prosecutor and “jail” Hillary Clinton. Once again, Trump fails to possess a basic understanding of the laws of the land. The President doesn’t appoint special prosecutors. The Attorney General or Congress do. If Trump orders the Attorney General to appoint one, then he is running afoul of the longstanding practice in American government that justice under the Attorney General will be administered without political interference from the President. The last President to try to politicize the office of the Attorney General was Richard Nixon when he ordered the firing of special prosecutor Archibald Cox.

Promising to jail Clinton is as clear a violation of due process as there is. Everyone has the right to a fair trial and not to be a campaign promise fulfilled. An act such as this by Trump would shred the Constitution. No President has ever sought to jail an opponent as Trump proposes. It is the action, as Clinton’s campaign spokesman said, of a “banana republic” dictator.

The separation of powers has also gone under attack in Trump’s platform. In his squabble with Judge Gonzalo Curiel earlier this year, Trump suggested limiting the judge’s term in office. The judiciary is supposed to be an independent third branch of government, not a toy for Presidential vengeance.

Trump’s dismissal of the Bill of Rights is an existential threat upon American liberties. Yet, it doesn’t end there. His lack of knowledge about how government works is appalling. Trump repeatedly criticized Clinton in the second debate for failing to accomplish anything as a senator. Although Clinton rattled off a number of bills that she sponsored or cosponsored, Trump continued to press her on why she had not done more as a senator. The fact is that a senator is one of one hundred. There is also the House of Representatives and the President. A single senator doesn’t have control of the Senate, much less the entire Congress and the executive branch.

That Trump is a viable candidate for the highest office in the land is shameful and disturbing. Most of all, it is downright dangerous. His disregard for the Constitution should lead to a massive landslide of epic proportions. Instead, we are apt to see a level of support comparable to what Hitler received when he was elected Chancellor of Germany. That comparison should not be forgotten for the times are no less perilous.

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