File this under “things that I really didn’t think that I would ever have to discuss”, but here we are. Recently, following some extremely unhinged remarks from the White House concerning Iran, there have been various calls to remove President Donald Trump from office via the 25th Amendment. That amendment, which governs presidential succession and disability, contains four sections.
The first section states that if the presidency becomes vacant, the vice president becomes the president, codifying the Tyler Precedent of 1841, where John Tyler, then vice president, assumed the presidency in its entirety upon the death of his predecessor, William Henry Harrison. In other words, Tyler wasn’t just acting as president. He was the president. This is accepted now, but it wasn’t always, and someone had to determine that, as the original Constitution was somewhat ambiguous on this.
The second section provides for a mechanism to replace the vice president in the event of a vacancy in that office. Prior to this, the office of vice president had simply remained vacant until the next election. This section has been invoked twice, in relatively short succession in the 1970s, after then-VP Spiro Agnew resigned due to corruption charges stemming from various political positions held in Maryland (way to represent the state), and Gerald Ford was appointed by then-president Richard Nixon to replace Agnew, and subsequently confirmed by a majority vote by both houses of Congress. Then when Nixon resigned due to Watergate, the vice presidency became vacant again when Ford took over as president, and Ford appointed Nelson Rockefeller to the vice presidency. So far, so good.
The third section discusses self-declaration of disability by the president, to allow the vice president to act as president during times when the president has declared on their own that they are unable to function as president. Historically, this has been invoked when the president needs to go under anesthesia for a medical procedure, and has been invoked four times by Reagan, George W. Bush, and Biden, and interestingly enough, all for colon issues, most frequently colonoscopies. It is also worth noting that Trump raw-dogged a colonoscopy in 2019 specifically to avoid invoking the 25th Amendment and temporarily transferring power to then-VP Mike Pence. That’s… special. I wouldn’t have done that myself, but I suppose that was Trump’s prerogative.
The section that is relevant to current events is the fourth and final section, governing involuntary declaration of presidential disability. That reads as follows:
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.
Basically, this fourth section spells out the procedure under which the president can be declared incapable of performing his duties, and where he is also either unable or unwilling to voluntarily relinquish his duties under section 3. The idea is that if the president is incapable of governing, there is a procedure where the rest of the government can go around him.
It is also worth noting that this is not a legal process. It is a political process. The judiciary has no role in this, and if a case were brought to them about it, I suspect that they would probably punt it, calling it a political question, and therefore outside of their scope, as it is something for the political branches of government, i.e. legislative and execitive, to figure out on their own. It’s kind of like the idea that there is no clear guideline about what constitutes an impeachable offense. Rather, an impeachable offense is whatever a given Congress decides it is, no more, no less. If they’re willing to impeach someone over it, then it is an impeachable offense. Don’t overthink it.
What many of the people who have called for his removal under this section don’t seem to realize is that involuntary removal under the 25th Amendment is a very high bar to meet. Realize that all of the following entities would need to agree that the president was incapacitated and unable to perform his duties:
- The vice president
- A majority of cabinet members
That’s 13 people right there, with the VP and 12 out of 23 cabinet members. Then if the president challenges the involuntary declaration of disability, the following entities have to also agree in order to make it stick:
- Two-thirds of the House of Representatives
- Two-thirds of the Senate
That’s an additional 357 people, consisting of 290 representatives and 67 senators. So in total, 370 people are required to agree to remove the president under involuntary disability and override any presidential challenge of such disability. That is a lot of people. What the whole Trump-must-go crowd doesn’t seem to understand is that impeachment and removal, which was used on Trump twice in his first term, actually has a lower bar to clear than the 25th Amendment’s section on nvoluntary disability. Impeachment requires a simple majority of the House of Representatives, i.e. 218 representatives, to pass. Then following the trial in the Senate, it requires a two-thirds majority to remove. That’s only 285 people that all have to agree. The vice president and cabinet have no role in the impeachment process, and it requires 72 fewer representatives to clear the House.
Looking at the makeup of the 119th Congress, as of this writing, there are currently 217 Republicans and 214 Democrats (including one independent who caucuses with the Democrats) and three vacant seats in the House, and 53 Republicans and 47 Democrats (including two independents who caucus with the Democrats). All of those numbers fall short of the two-thirds needed to remove the president under the provisions of the 25th Amendment. Thus if we’re assuming that everyone will vote based on party lines, there is no path towards removal – especially not on the Democratic side.
The only way that Trump is removed is if he somehow loses the support of his own party. If he no longer has the Republican Party on his side, he’s as good as done. That’s what happened in 1974 with Nixon and Watergate, and thus why Nixon resigned. The Congress had assembled enough votes to impeach him and remove him, Niixon saw the writing on the wall, and he just did an end run around it all and left voluntarily. The same thing would need to happen with Trump in order for him to be removed from office. Thus as long as I’m only hearing these sorts of calls from the Democratic side of the aisle, I do not care, because it’s just more bloviating and political grandstanding. In other words, it’s noise, because there are not enough votes to back these calls up. The moment when I start hearing calls for removal from sitting Republican lawmakers, then I will pay attention, because then that starts to sound like votes are being assembled to do something big.
Bottom line here: Trump is not going anywhere until the Republican Party makes the decision to abandon him. As long as he has the support of his party, he is safe. The Democrats’ noisemaking, bouncing between impeachment and the 25th Amendment depending on the mood of things, is getting really old, because as long as the GOP supports Trump, he is safe. The moment that the GOP starts to abandon him en masse, then, and only then, do you have my attention.