President Trump, 25th Amendment, constitutional crisis, Trump, GOP, Bannon

The 25th Amendment: A Constitutional Crisis?

By Grace Lidia Suarez

An increasing number of people, since the publication of Michael Wolff’s sensational Fire and Fury, are saying that our President is, not well. As you can see from the tweets below, he vehemently denies it. Some say that his denial is further proof of his illness, and that his illness precludes him from discharging his constitutional duties.

….Actually, throughout my life, my two greatest assets have been mental stability and being, like, really smart. Crooked Hillary Clinton also played these cards very hard and, as everyone knows, went down in flames. I went from VERY successful businessman, to top T.V. Star….. https://twitter.com/realdonaldtrump/status/949618475877765120

….to President of the United States (on my first try). I think that would qualify as not smart, but genius….and a very stable genius at that! https://twitter.com/realdonaldtrump/status/949619270631256064

 

The question that hangs over everything at the moment: is the President unable to discharge his duties? If that is or becomes the case, there is a procedure for removing him from office which is surprisingly simple, certainly simpler than impeachment. That procedure involves the invocation of the 25th Amendment.

A bit of background

Text of the 25th Amendment:

Amendment XXV

Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

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.

Some of the provisions have been used before, though not Section 4, the biggie.

This from the Congressional Research Service:

This Amendment saw multiple use during the 1970s and resulted for the first time in our history in the accession to the Presidency and Vice–Presidency of two men who had not faced the voters in a national election. First, Vice President Spiro Agnew resigned on October 10, 1973, and President Nixon nominated Gerald R. Ford of Michigan to succeed him, following the procedures of Sec. 2 of the Amendment for the first time. Hearings were held upon the nomination by the Senate Rules Committee and the House Judiciary Committee, both Houses thereafter confirmed the nomination, and the new Vice President took the oath of office December 6, 1973. Second, President Richard M. Nixon resigned his office August 9, 1974, and Vice President Ford immediately succeeded to the office and took the presidential oath of office at noon of the same day. Third, again following Sec. 2 of the Amendment, President Ford nominated Nelson A. Rockefeller of New York to be Vice President; on August 20, 1974, hearings were held in both Houses, confirmation voted and Mr. Rockefeller took the oath of office December 19, 1974.

The meaning of the words

What does it mean to be “unable to discharge the powers and duties of his office?” The primary author of the amendment, Senator Birch Bayh, wrote in 1995 that,

The key question is who determines if a President is unable to perform his duties? The amendment states that if the President is able to do so, he may declare his own disability; otherwise, it is up to the Vice President and Cabinet. Congress can step in if the White House is divided.

That this decision is left to politicians has led critics, including Jimmy Carter, to argue for a panel of physicians.

Yes, the best medical minds should be available to the President, but the White House physician has primary responsibility for the President’s health and can advise the Vice President and Cabinet quickly in an emergency. He or she can observe the President every day; an outside panel of experts wouldn’t have that experience. And many doctors agree that it is impossible to diagnose by committee.

Besides, as Dwight D. Eisenhower said, the “determination of Presidential disability is really a political question.” The Vice President and Cabinet are uniquely able to determine when it is in the nation’s best interests for the Vice President to take the reins.

It seems that the phrase means whatever the Vice President and the Cabinet decide it means.

A constitutional crisis?

Those words are becoming overused. If the Vice President and the majority of the Cabinet decide Trump cannot discharge his duties, it’s a done deed. It’s not a constitutional crisis, though it might be quite a scene if Trump refuses to go, or if he dismisses the Cabinet members who voted to oust him. That might precipitate a crisis.

Bannon allegedly predicted the following scenario:

Bannon “was openly handicapping a 33.3 percent chance of impeachment, a 33.3 percent chance of resignation in the shadow of the 25th amendment and a 33.3 percent chance that he might limp to the finish line on the strength of liberal arrogance and weakness,” Wolff wrote.

A storm is brewing. Given the enduring nature of our Constitution, and its ability to withstand crises, I predict the situation will not devolve into a constitutional crisis. But, as in the ancient curse, we will be living through interesting times.

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