Former Trump consiglieri Steve Bannon believes that the president has less than a one in three chance of making it through his full term, according to a report last week in Vanity Fair. The story is that Bannon told Trump that “the risk to his presidency wasn’t impeachment, but the 25th Amendment” — to which Trump allegedly replied, “What’s that?”
They say there’s no such thing as a stupid question, so: the 25th Amendment, drafted in the wake of the Kennedy assassination and ratified in 1967, allows the vice president to take over when the president is deemed “unable to discharge the powers and duties of his office.” Section 3 allows the president to make the call himself, and several presidents have used it to stand aside temporarily while undergoing surgical procedures. Section 4 provides for the president’s involuntary removal when vice president and a majority of Cabinet heads or “such other body as Congress may by law provide” declare him incapacitated.
The 25th Amendment wasn’t designed for ejecting “merely” erratic or untrustworthy presidents. It aimed at situations of total, or near-total disability.
In the five decades since the amendment’s ratification, section 4 has featured in multiple TV thriller plots, but never been used in real life. Lately, though, growing numbers of public intellectuals and elected officials have decided it’s the best way to repeal and replace the Trump presidency. Sorry: It’s not going to happen.
Leave aside Steve Bannon, it’s mystifying that smart people — like The New York Times’ Ross Douthat, the University of Chicago’s Eric Posner, and former law professor U.S. Rep. Jamie Raskin (D-Md.) — have convinced themselves that the “25th Amendment Solution” is viable. In a Washington Post column this week, The American Prospect’s Paul Waldman argues that while Trump’s impeachment is “only a remote possibility,” his removal is “far more likely to happen via the 25th Amendment.”
It’s hard to see how. For one thing, unless Vice President Mike Pence is much less servile and more Machiavellian than he seems, the “25th Amendment Solution” never gets off the ground. Perhaps Pence is trying to lull “45” into a false sense of security before pulling the section 4 trigger, but right now he sure doesn’t look like a guy plotting to overthrow his boss.
Even if Pence proves a willing co-conspirator, for the switch to last, you’d need two-thirds of both houses of Congress to ratify it. If you have that, you already have more than enough votes for Trump’s impeachment and removal. The 25th Amendment’s framers deliberately set the bar higher for removal via section 4 because, as one of its principal architects, U.S. Sen. Birch Bayh (D.-Ind.) explained: “We were concerned about the politics of the palace coup.”
If you don’t have a supermajority in both Houses, then within three weeks, Trump would return to the Oval Office hell-bent for vengeance. And, short of the president actually standing in the middle of Fifth Avenue and shooting someone, it’s hard to imagine nearly 100 GOP congressmen crossing the aisle to declare him mentally unfit for office.
The 25th Amendment wasn’t designed for ejecting “merely” erratic or untrustworthy presidents. It aimed at situations of total, or near-total disability. Fordham University law professor John Feerick, who helped draft the amendment, summarizes the congressional debates on section 4: “It was made clear that unpopularity, incompetence, impeachable conduct, poor judgment, and laziness do not constitute an inability within the meaning of the Amendment.”
The only real advantage the disability amendment has over the old-fashioned method is speed: the president can be displaced — temporarily, at least — as soon as the vice president and a majority of the Cabinet send notification to Congress. There’s one scenario where that speed would be absolutely necessary and the “25th Amendment Solution” might work: If the president were to order an unprovoked nuclear first strike, it’s possible that the secretary of defense could, instead of transmitting the launch order, get on the phone with the veep instead. They could then decide to trigger section 4, putting the president into a “time-out” until Congress votes. And Congress, presumably, would go into that vote knowing that, unless they ratify the switch, they’re voting for nuclear war.
That scenario is, I hope, unlikely. But if it happens, you won’t hear me complain about the constitutional impropriety of invoking section 4. It’s crazy that it’s not entirely crazy to think about this kind of thing.