The 25th Amendment Should Not Be Invoked LightlyRoundup
tags: Constitutional Law, Donald Trump, 25th Amendment
Brian Kalt is a professor of law and The Harold Norris faculty scholar at the Michigan State University. Follow him on Twitter: @ProfBrianKalt.
As if the footage of rioters waving Trump flags and storming the U.S. Capitol were not jarring enough, multiple reports Wednesday indicated that members of President Trump’s Cabinet were discussing the unprecedented step of invoking Section 4 of the 25th Amendment.
Section 4 empowers the vice president and a majority of the Cabinet to declare a president “unable to discharge the powers and duties of his office,” at which point the vice president steps in temporarily as acting president.
We have no way of knowing how serious any such discussions were, or how many of the Cabinet’s 15 members might have been involved. It is unclear if the discussion was prompted by what the president had been doing (inciting rioters), or had not been doing (governing). But Section 4 is designed primarily to work against presidents who cannot do anything, not against presidents who are all too able to do bad things — the latter is fodder for the impeachment process.
So might Section 4 be a realistic option? Perhaps, if the situation in Washington, D.C., spirals further out of control between now and Jan. 20. But Section 4 sets that bar high.
Section 4 divides “unable” presidents into two categories. When presidents are incapacitated — when they cannot even contest the action — Section 4 transfers power to the vice president swiftly and simply. But when presidents are up and around (as Trump is) and can assert that “no inability exists,” Section 4 stacks the deck very heavily in the president’s favor. When the president objects, he will eventually retake his powers unless the vice president and Cabinet are supported by two-thirds majorities in both the House and Senate within 21 days. Even then, the president can keep trying to return, forcing new votes.
Section 4, by contrast [to impeachment and removal], could be executed in mere minutes. As a result, Section 4 is tempting to use against a president who is not incapacitated, but is unhinged (a form, arguably, of being “unable”), and is threatening irreparable harm that needs to be stopped immediately. Used in conjunction with impeachment — as a way to suspend the president pending a House investigation and Senate trial — Section 4 could be a valuable tool. More directly relevant to the current situation, because the president’s term ends in under 21 days, the House and Senate could simply run out the clock by not voting on the Section 4 action at all.
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