The 25th Amendment? Forget It
Interest in Section 4 of the 25th Amendment is peaking. Multiple amateur constitutional scholars have advocated its use to remove President Trump from office, as an alternative to impeachment. But Section 4 is a tool for a different job. Its use under today’s circumstances has the potential to tear the country apart.
Section 4 is not a suitable substitute for impeachment. To be sure, impeachment sets a high bar: a majority in the House, then two-thirds in the Senate to convict and remove an official. Section 4 sounds easier: If the vice president and a majority of the cabinet declare the president “unable to discharge the powers and duties of his office,” the vice president becomes acting president.
Section 4 is a great solution if the president is missing or comatose, but a terrible one when he is conscious and in full control of his Twitter account. The first difficulty is that the president can contest the cabinet’s action. If he does, Congress assembles, debates and votes. Unless two-thirds of both House and Senate vote within 21 days to back the cabinet, the president retakes power. Because impeachment requires only a simple House majority, it is easier for the president to defeat a Section 4 action than to avoid impeachment.
Further, if the president loses a Section 4 vote, he is displaced only temporarily; nothing stops him from trying again. All he needs is the support, one time, of more than a third of either the House or Senate.
Some argue that impeachment is limited to high crimes and misdemeanors, making it inappropriate for the case of someone who is (as Mr. Trump’s calmer critics describe him) simply in over his head. But anyone who wields as much power as the president and who is grossly incompetent surely will have done something that rises to the level of an impeachable offense.
Section 4 is also horribly hazardous. The fatal flaw emerges from this passage: “When the President transmits . . . 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 [the cabinet] transmit within four days . . . their written declaration that the President is unable to discharge the powers and duties of his office.”
After reading that, who do you think holds presidential power during the four-day waiting period between the president’s declaration and the cabinet’s counterdeclaration? The answer is the vice president. The best reading of the text and the only reading of the crystal-clear legislative history is that the president does not immediately retake power.
Several intelligent but poorly informed commentators have gotten that wrong and said that the president would retake power immediately. A besieged president would have a tremendous incentive to look at the text, interpret it favorably to himself, and rally his supporters around that interpretation. He would assert that he had retaken power immediately and—showing his ability to discharge the powers and duties of his office—he would fire his disloyal cabinet and name more-agreeable allies as acting secretaries.
The old cabinet could fight back in Congress and in court. The best reading of the law would be on their side. But how confident are you that the winner would be determined by a careful consideration of legislative history?
Any president who could speak on his own behalf would be in a position to prolong the struggle. And what a struggle it would be, with two men claiming to be president and two rival cabinets. Even if Congress or the courts resolved the issue, and even if everyone involved respected their authority, being in such a situation for even an hour could wreak serious harm to the country. Because impeachment works better than Section 4 here, this terrible risk is also a needless one. Please, keep the 25th Amendment in reserve for the kind of emergency it was meant to address.
Mr. Kalt is a law professor at Michigan State University and author of “Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies” (2012).
Appeared in the May. 19, 2017, print edition.