Stop Talking About the 25th Amendment. It Won’t Work on Trump.

by David Greenberg and Rebecca Lubot

David Greenberg, a professor of history and journalism and media studies at Rutgers, is a contributing editor at Politico Magazine. He is the author of several works of political history including, most recently, Republic of Spin: An Inside History of the American Presidency. Rebecca Lubot is a policy and legislative specialist with a PhD in history from Rutgers University and an MSc in the theory and history of international relations from The London School of Economics. Her dissertation, defended last year, was “The Passage of the Twenty-Fifth Amendment: Nuclear Anxiety and Presidential Continuity,” from which parts of this essay are drawn.

An unnamed administration official’s recent New York Times op-ed revealing that top aides have been trying to restrain President Donald Trump’s worst impulses has launched a new debate about removing Trump from office with the 25th Amendment. Describing a “leadership style” that is “impetuous, adversarial, petty and ineffective,” the official cited “early whispers within the cabinet of invoking the 25th Amendment” that were dropped because “no one wanted to precipitate a constitutional crisis.” Instead, he said, cooler heads are seeking “to steer the administration in the right direction until—one way or another—it’s over.”

Controversy has focused mostly on whether this official should be praised for curbing Trump or blasted for writing anonymously. But there’s another question that’s trickier: Can the 25th Amendment be used to send Trump back to Manhattan? Ratified in 1967, the amendment has four sections. Section 1 restated more or less what’s in the Constitution: that if the president is removed from office because of death or resignation, the vice president becomes president. Section 2 allows for the replacement of the vice president when the office is vacant; it was used to make Gerald Ford vice president after Spiro Agnew’s resignation in 1973, and to install Nelson Rockefeller after Ford’s ascension to the presidency. Section 3 sets forth when and how the president can voluntarily transfer his powers temporarily—as, for example, George W. Bush did twice when undergoing colonoscopies. But this debate centers on Section 4, which has never been invoked. This section lets the vice president and a majority of Cabinet secretaries (“or such body as Congress may by law provide”) declare the president “unable to discharge the powers and duties of his office,” making the vice president the “Acting President” until the president, through a complex process, is deemed fit to return to office.

Can Trump be removed from office under this amendment? Or would doing so provoke a constitutional crisis, as the Times’ essayist feared? Some critics have attacked the official for not going forward with Section 4, suggesting that the internal undermining of Trump is dangerous or undemocratic. The history of the 25th Amendment, however, suggests that our unnamed informer is on solid ground....

In a 1992 book, The President Has Been Shot, physician Herbert L. Abrams examined the situations in which the amendment’s framers intended for Sections 3 and 4 to be invoked. Section 3—the temporary transfer of power—applied, in his judgment, during “planned, major surgery,” other surgery requiring general anesthesia, and “the use of psychoactive drugs in significant amounts.” It could also be invoked, he said, in the event of “serious presidential illness”; “the diagnosis of Alzheimer’s disease or of any other progressive, mentally disabling conditions”; if the president or his physician believed “that an illness, injury, or emotional condition is interfering with his judgment or ability to govern”; or during “any anticipated situations in which the president will be unable to communicate with his government,” such as a nuclear strike.

As for Section 4, Abrams said its use was more “complicated and delicate.” It applied during such serious situations as “loss of consciousness,” “significant alterations of the president’s cognitive faculties or inability to communicate,” “serious injury to the president following an accident or attack on his person,” “terminal illness,” and “progressive, mentally disabling conditions.”...

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