The now-famous Op-Ed article, ‘I Am Part of the Resistance Inside the Trump Administration’, published in The New York Times (and reproduced in The Indian Express Saturday), contained this sentence: “Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president.”
What is Amendment XXV to the United States Constitution, and what is the “complex” process it prescribes?
Article II (Section 1, Clause 6) of the US Constitution deals with the “Removal of the President from Office”, and mentions his “Disability”, or “Inability to discharge the Powers and Duties of the said Office”, but does not explain, as John Dickinson, a Founding Father, asked, “What is the extent of the term ‘disability’ and who is to be the judge of it?” Following the assassination of President John F Kennedy (in 1963), and uncertainty over the procedure to choose a new Vice President after Lyndon B Johnson was elevated to the presidency, Congress in 1965 proposed an amendment to deal with “Presidential Vacancy, Disability and Inability”, which was ratified over the next couple of years by all but three states, and certified by President Johnson in February 1967.
The Congressional Research Service annotation to the Constitution reads: “The Twenty-fifth Amendment was an effort to resolve… issues… [including]… what is the course to follow if… the President becomes disabled to such a degree that he cannot fulfill his responsibilities?… The unanswered questions: who was to determine the existence of an inability, how was the matter to be handled if the President sought to continue, in what manner should the Vice President act… what was to happen if the President recovered. Congress finally proposed this Amendment to the States in the aftermath of President Kennedy’s assassination, with the Vice Presidency vacant (from 1963-65) and a President (Johnson) who had previously had a heart attack.”
Amendment XXV has four sections:
* The first section says “in case of the removal of the President… or of his death or resignation, the Vice President shall become President”.
* The second says that “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”
* The President can, after informing the President pro tempore of the Senate and Speaker of the House of Representatives, temporarily hand over his responsibilities to the Vice President.
* The fourth section — which is currently relevant — allows the Vice President and “a majority of either the principal officers of the executive departments (the Cabinet) or of such other body as Congress may by law provide” to declare to the President pro tempore and Speaker “that the President is unable to discharge the powers and duties of his office”. In such a case, the Vice President “shall immediately assume the powers and duties of the office as Acting President”. If the President submits that “no inability exists”, “Congress shall decide the issue… by two-thirds vote of both Houses”.
Use of Amendment
Sections 1 and 2 were used in 1974, when President Richard Nixon resigned in the wake of Watergate, and was replaced by Vice President Gerald Ford — who nominated Nelson A Rockefeller as Vice President. Section 3 was used when President Ronald Reagan had a surgery in 1985 and Vice President George H W Bush discharged his duties, and in 2002 and 2007 when President George W Bush handed over his duties to Dick Cheney for short intervals. Section 4 has never been used.
If it were to be used
Vice President Mike Pence and a majority of President Donald Trump’s 23-strong Cabinet would have to write to the President pro tempore (Senator Orrin G Hatch) and the Speaker (Representative Paul D Ryan). Trump would lose his powers, and Pence would become Acting President; however, Trump would be within his rights to give a counter declaration, and get back his powers. Pence and the Cabinet would then have to send a second declaration to Hatch and Ryan within four days, reiterating their position. And Pence would be back as Acting President.
Congress would have to assemble within 48 hours and vote on the issue within 21 days. If two-thirds of both Houses agree that Trump can’t remain President, he would have to go, and Pence would become President. Otherwise, Trump would be back as President.
The procedure to remove a President under Amendment XXV is more difficult than impeachment under Article II, Section 4, wherein impeachment can happen by a simple House majority, and the President can be removed by a two-thirds vote in the Senate.