Vice President Mike Pence has reportedly said that he does not want to attempt to use the Constitution’s Twenty-fifth Amendment to remove President Donald Trump from office. Yet even as the House is in the fast-moving preliminary stages of considering a second Trump impeachment, many politicians and commentators continue to make the case for using the Twenty-fifth Amendment.
Impeachment is by far the preferable route for removing a president. The Twenty-fifth Amendment is meant to deal with medical issues that prevent a president from performing his duties. The impeachment process is the correct procedure for the situation in which we find ourselves—with a president whose actions, rather than his conditions, merit his removal from office; when the central questions are political or ethical rather than medical. Impeachment is how the Framers intended Congress punish a president’s crimes, malfeasance, or immorality. The fact that little more than a week remains in Trump’s term is no excuse. Congress should perform its duty, not look to the executive branch for a shortcut.
Ratified in 1967, the Twenty-fifth Amendment was designed to address several problems with the offices of president and vice president, including how new vice presidents can be appointed in the event of a vacancy and how the president can temporarily delegate his powers to the vice president.
The amendment’s fourth section is the one under consideration now. It allows for the vice president and cabinet to start a process to transfer power to the vice president without the president’s consent or even against his will. But it has never been used and it does not fit today’s situation with Trump.
The amendment’s authors sought a way to deal with the nightmare of a president whose health was so impaired that he could not carry out his duties. It has happened with several presidents in our nation’s history.
In 1881, James Garfield was shot by an assassin and lingered for months, in agonizing pain, as he slowly succumbed to infection.
In 1919, Woodrow Wilson suffered a stroke, and his wife, doctor, and close aids hid the severity of his condition not only from the public and Congress, but even from his cabinet. A century later, it remains unclear exactly what Woodrow Wilson approved during this period and what was carried out by Edith Wilson acting on her husband’s behalf.
In 1955, Dwight Eisenhower suffered a heart attack and a year later underwent surgery for a bowel obstruction. He had signed an agreement with Vice President Richard Nixon to govern in his absence, but the deal was constitutionally dubious.
The Twenty-fifth Amendment’s text does not specify that it may be used only for a medical emergency. Section four requires a written declaration that “the President is unable to discharge the powers and duties of his office.” But a medical emergency is clearly what the amendment is meant for.
In our current crisis, it is unwise to push the envelope of constitutional interpretation, which would inject even more uncertainty into how the Constitution’s rules are applied. Invoking the Twenty-fifth Amendment now to force Trump from office will set a precedent: It will change the relationship among the president, vice president, cabinet, and Congress.
What’s more, invoking the Twenty-fifth now doesn’t solve the problem of the clock running out before inauguration day. Section four says that the vice president “shall immediately assume the powers and duties of the office as Acting President” after sending to Congress a declaration signed by both himself and a majority of the cabinet. But the president can immediately object by sending a letter of his own; the powers of the office would then return to him. The vice president and cabinet would then have to send another letter, and then “Congress shall decide the issue” via a process left unspecified. So using the Twenty-fifth Amendment to remove an unwilling president, even assuming a majority of the cabinet would go along with it, would likely involve the bouncing back and forth of presidential power, followed by congressional debate that could go on for up to three weeks.
The amendment also provides for the removal of the president following the recommendation of “such other body as Congress may by law provide”—presumably a special commission to determine presidential fitness—but if Congress is willing to involve itself to that degree, it ought instead to pursue the more appropriate path of impeachment.
Relatedly, if the Twenty-fifth were deployed, Vice President Pence would become only acting president while Trump remained president but without powers—another novelty sure to cause confusion and foster more instability. We’ve previously only had a vice president as acting president for a few hours while presidents underwent surgery. What chaos would a week of an acting president bring if power was wrested against the president’s will?
If the only option for removing the president were pursuing the Twenty-fifth Amendment, the potential chaos and confusion involved would probably make it preferable to just wait out the remaining days of the expiring Trump administration.
Fortunately, the Twenty-fifth Amendment is not the only option. If Congress is inclined to force Trump from office, it should seek impeachment and conviction, the process most clearly envisioned by the Constitution for this situation. Yes, impeachment is usually a drawn-out procedure—forty-nine days elapsed from the approval of impeachment articles by the House of Representatives to President Trump’s acquittal by the Senate—but Congress can move more quickly if it has the will. Trump’s allies in Congress might interfere, but they would have a voice in a Twenty-fifth Amendment procedure anyway.
Congress must accept its responsibility and act with urgency, not pass the buck to the vice president and the cabinet.