Questions on a Trump impeachment and invoking the Twenty-fifth Amendment – OUPblog

Posted: January 17, 2021 at 9:18 am

The past few weeks have been a tumultuous time in US politics and a historic second impeachment for President Trump could be on the cards at the end of a presidency that has often been hard to predict. Taken fromImpeachment: What Everyone Needs to Know ,we look at some of the key questions surrounding such an action to remove him from office:

There is a general expectation that most issues pertaining to a presidents performance in office are to be dealt with through the electoral process (if the president runs for re-election) and the other checks recognized as applying to presidential conduct, such as popularity, the press, the judgment of history, and congressional oversight. Impeachment is a last resort for handling misconduct that cannot be dealt with by other means and that involves misconduct sufficiently serious to constitute treason, bribery, or other high crimes and misdemeanors.

Instead of being subject to a statutory mechanism like the Judicial Discipline and Disability Act, presidents are subject to the Twenty-fifth Amendment, which was ratified in 1967. It provides a mechanism for handling a presidents becoming subject to some disability that prevents him from doing his job, such as a major stroke or serious mental illness. This mechanism seems better suited than impeachment for dealing with incompetence resulting from some mental or physical disability.

The Twenty-fifth Amendment has four sections. The first section codifies the precedent set by John Tyler, which clarified who became president when a president died in office. Tyler claimed that the presidents death automatically elevated him from the vice presidency to the presidency. The Twenty-fifth Amendments first section now makes that practice a constitutional directive.

Section 2 of the Twenty-fifth Amendment provides a procedure for replacing a vice president who resigns, dies, or is incapable of further performing the duties of his office. If any of those things happens, the president is empowered to nominate a replacement, who has to be approved by a majority of each chamber of Congress.

Section 3 of the Twenty-fifth Amendment provides a procedure for temporarily empowering the vice president to take over the responsibilities and duties of the presidency. It provides that when a president transmits a written declaration to the president pro tempore of the Senate and the speaker of the House that he is unable to perform his duties, the vice president assumes those duties until the president sends another written communication to the same officials declaring that he is capable of resuming his duties.

The fourth section of the Twenty-fifth Amendment provides a procedure to be followed if the president becomes disabled but is unable to produce the written communications required in Section 3. This procedure allows the vice president, together with a majority of either the principal officers of the executive departments or of such body as Congress may by law provide, to declare the president unable to discharge the powers and duties of his office through a written declaration submitted to the speaker of the House and the president pro tempore of the Senate.

Section 4 is the only section of the Twenty-fifth Amendment that has never been invoked. Sections 1 and 2 were invoked three times during the Watergate scandal and Section 3 has been invoked three times to appoint vice presidents as acting presidents all for medical reasons.

The short answer is that it depends on the facts, but as we know from the plain language of this section, it comes into play if the vice president and a majority of the cabinet (or some other authority that the Congress has designated by statute) determine that the president has become disabled because of some mental illness or other problem.

This analysis cannot be a substitute for the kind of fact-finding that would have to be undertaken if this portion of the amendment was ever invoked. We know, from the congressional debates on the Twenty-fifth Amendment that these provisions were intended to address mental or physical incapacitation, as well as situations where a president might be out of reliable communication or kidnapped. We know as well that the purpose of this section is not to provide a means for a no-confidence vote but is designed to provide clarity and therefore some safeguards on circumstances when presidential incapacity requires putting his second in command in charge of the government, at least temporarily. The requirements themselves suggest a high threshold for its implementation, depending on the presidents own allies and appointees to come together to a significant degree for the sake of the country.

If Congress has to determine a Section 4 dispute between the vice president and the president, the Constitution makes it highly likely that the president will win (as he should, given the likelihood that he is the one who has been elected to the office). The requirements (1) for the acting president and a majority of the cabinet to send a second declaration that the president is incapacitated in response to the presidents issuing a challenge within four days of their initial declaration and (2) for two-thirds of each chamber of Congress within twenty-one days to express their agreement with the second declaration of the presidents incapacity (as a prerequisite for the vice presidents continuing to serve as acting president) are powerful checks on the vice president and cabinet stealing the office from the president. The acts high thresholds create a default rule that the president remains in office unless they can be met.

Whether that two-thirds support actually exists would of course depend on the facts and public perception at the time as well as the congressional and public perceptions of the vice president and the cabinet. If, for example, the vice president and the majority of the cabinet were widely considered to be acting out of the best motives and perceived to have been loyal and credible, the public and members of Congress, particularly the presidents partisan allies, might be more receptive to the determination of the need to replace the president temporarily. The presumption underlying the structure is that if the two-thirds threshold were met there must be compelling or strong evidence to declare the president incapacitated and thus unable to perform his duties.

Featured image by Alejandro Barba.

Questions on a Trump impeachment and invoking the Twenty-fifth Amendment - OUPblog

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