Diary

The Twenty-Fifth Amendment Solution

Many have been asking the question, “how can we trust an erratic personality like Donald Trump with the powers of the Presidency.” I suggest that the answer lies in the Twenty-fifth Amendment to the U.S. Constitution, which gives a Vice President to immediately assume the powers of the Presidency if a majority of the Cabinet supports his effort. This would become essentially permanent upon a 2/3 vote of Congress which would be required to take place within a month. Obviously this would be an extraordinary measure – and it should be. It depends on people normally chosen by the President to take action against him. But it does not require a “high crime or misdemeanor” like impeachment proceedings, and would become a very feasible option if Trump actually did some of the awful and unlawful things people are speculating he could do. He does not have a large enough cadre of personally loyal people big enough to fill the cabinet, and those who would be unquestioningly loyal would have trouble being confirmed by the Senate. While the principle purpose of the provision is to address situations where the President is physically or mentally incapacitated, there is nothing in the text that prevents it from being used to remove the powers of the Presidency from someone who proves to be temperamentally unable to exercise Presidential powers.

Suppose, hypothetically, that next March President Trump gives a speech demanding that Mexico immediately send the United States a $5 billion check to pay for construction of a border wall, and threatens to nuke Mexico City if the money is not sent. I suggest that it would be very likely that Vice President Pence would first go to the President and tell him he needs to withdraw the threat. If Trump refused, he can call up cabinet members known to be uneasy about it, and have them join a declaration to Speaker Ryan and President Pro Tempore Hatch that they believe Trump to be unable to discharge the powers and duties of his office. This would immediately make Pence the acting President. Assuming that Trump lodged an objection, Congress would be called into session (if they weren’t already) and be required to vote within three weeks on whether the President was able to discharge the powers and duties of the office. Essentially, a President can be removed temporarily at any time by his VP and half the cabinet, which becomes permanent if he can’t muster at least 1/3 of Congress.

This and other checks on executive power are why I view it as a good thing that doubts about Trump are being expressed by Republican officials, including people close to Trump. They are not beholden to him. If they are unwilling to support him fully when there is an election pending and the alternative is Hillary Clinton, there is no reason to expect them to do so when the alternative is Mike Pence or Paul Ryan. Hillary Clinton is another matter entirely. We know from her party’s conduct during the administrations of both her husband and Barack Obama that they will not take action against her, but will use their power in whatever offices they hold to impede Republicans from holding her accountable. If we learn that as Secretary of State she arranged for Iran to be given technology to build nuclear weapons in exchange for a donation to the Clinton Foundation, it would be a pretty safe bet that the impeachment vote would be almost strictly on party lines. And whoever is the Democrats’ ranking member on the investigating committee will claim that every hearing is a partisan witch hunt. Republicans don’t have that kind of loyalty to Donald Trump.

 

Here is the full text of Amendment XXV, sec. 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.