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The ’25th Amendment Solution’ to Replace President Trump Is Nuts

Gene Healy

On Sunday morning, the president of the United States took time
out from mulling the North Korean nuclear crisis to retweet a gag GIF from a fan with the Twitter
handle “@fuctupmind.” In such circumstances, you
can hardly blame people for worrying about the condition of the
president’s mind.

Prompted by President Donald Trump’s repeated outbursts of
“Twitter Tourette’s” and erratic public
appearances, a growing number of legislators advocate using the
25th Amendment to remove the president on the
grounds that he’s mentally “unable to discharge the
powers and duties of his office.” Rep. Zoe Lofgren, D-Calif.,
recently introduced a resolution calling for
Trump’s examination by “psychiatric
professionals” and “immediate action” by Vice
President Mike Pence and the cabinet. A similar measure, the
Oversight Commission on Presidential Capacity
Act
,” from Rep. Jamie Raskin, D-Md., now has 28
co-sponsors, including more than half of the Democrats on the House
Judiciary Committee.

Granted, there’s ample reason to worry about a president
who drifts from ranting at Boy Scouts to making off-the-cuff nuclear threats. But declaring
Trump mentally disabled is constitutionally dubious and wildly
impractical. In their quest to “stop the madness,” the
25th Amendment brigade might create a situation more bizarre and
destabilizing than the Trump presidency itself.

The 25th Amendment wasn’t
designed to be an “eject” button for presidents who are impulsive,
reckless or otherwise spectacularly bad at the job.

That’s because the convoluted process Section 4 of the
amendment sets up for replacing the president could stick us with
two presidents and two cabinets jockeying for recognition as the
“real” government. The term “constitutional crisis” gets thrown around
far too loosely, but the “25th Amendment solution”
might just deliver the genuine article.

Back in 2012, when Trump was best known as the host of
“Celebrity Apprentice,” law professor Brian Kalt
published a book, “Constitutional Cliffhangers,” that
identified the 25th Amendment as a “constitutional weak
spot” that could crack, if put to the test. To illustrate the
danger, here’s an updated version of the scenario Kalt
sketches.

Imagine Vice President Mike Pence is privately more
Machiavellian than he lets on; and he’s begun plotting with
his colleagues at the Cabinet’s weekly Bible Study meeting. Pence and company
decide to pull the trigger, activating Section 4 with a declaration
to the Speaker of the House and the president pro tem of the
Senate.

Here’s how it might play out from there: Trump, enraged,
sends a counter-declaration to Congress contesting the charge. Then
he summons the cabinet, and unleashes his signature line from the
Apprentice: “You’re fired!”

Trump then replaces his rebellious “team of rivals”
with reliable subordinates. Pence and the original cabinet counter
with an additional, “no, really, he’s nuts”
declaration to Congress. When Trump orders the Secret Service to
frogmarch the “fake Cabinet” out of the building, how
do they respond? Who’s in charge here?

Section 4’s language is less than lucid on this point. It
specifies that, upon sending the initial declaration, “the
Vice President shall immediately assume the powers and duties of
the office as Acting President,” but “when the
President transmits … his written declaration that no inability
exists, he shall resume the powers and duties of his office
unless,” within four days, the VP and a majority of the
cabinet reaffirm that the president is incapacitated.

Whether Trump had the right to sack his cabinet turns on whether
it was “his” when he gave the order. Under Section 4,
does Pence hold the reins, pending Congress’ resolution of
the issue – as much as three weeks later — or does the president
get his powers back as soon as he informs Congress he’s up to
the job? Will Congress make the call, or will it be settled
by the Supreme Court, in a case that would make
Bush v. Gore seem low-stakes by comparison?

“It is indisputable,” Kalt writes, “that
Section 4’ s creators intended for the vice president to
remain in charge during this waiting period.” But since the
text is murky on this point, “if push ever comes to shove,
things could go very badly.” Indeed, as Kalt notes, the
provision is more likely to be used when things are already going
badly, in “an external crisis,” like the outbreak of a
major war.

Drafted in the wake of President John F. Kennedy’s
assassination, the 25th Amendment aimed at situations of near-total disability. It wasn’t designed
to be an “eject” button for presidents who are
impulsive, reckless or otherwise spectacularly bad at the job.

Impeachment is the proper
constitutional remedy
for that sort of presidential incapacity.
And, while a majority in the House and two-thirds of the Senate is
a heavy lift, the double-supermajority the 25th Amendment requires
to finalize the switch is a nearly insurmountable bar. As the
amendment’s principal architect, then-Sen. Birch Bayh,
D-Ind., explained, “We were concerned about the politics of
the palace coup,” and deliberately made it harder to remove a
president via Section 4 than it is to impeach him.

Still, the disability amendment has one advantage over the
old-fashioned method: If you think politics hasn’t been quite
entertaining enough lately, the “25th Amendment
solution” could really kick this reality show up a notch.

Gene Healy is a
vice-president of the Cato Institute and the author of The Cult of the Presidency.