Following the riot on Capitol Hill in Washington on Wednesday, an increasing number of Republican officials have called for President Donald Trump to be removed from office using procedures outlined by the 25th Amendment to the Constitution.
“It does not surprise me that the 25th Amendment is being discussed,” Mick Mulvaney, former chief of staff to president Trump said Thursday on CNBC. “When the President of the United States encourages people to interrupt a constitutional process and violently have an insurrection against the government of the United States, than nothing is off the table.”
Meanwhile, senior administration officials in the executive branch and aides in Congress have discussed removing President Trump from office with just thirteen days remaining in his presidency, according to multiple press reports.
Democrats are also eager for the provision to be enacted, with House Speaker Rep. Nancy Pelosi of California and Sen. Chuck Schumer of New York calling on Vice President Mike Pence Thursday to invoke it.
Sen. Lindsay Graham, Republican of South Carolina, is one ally of the president who has publicly opposed the move, for now. “As a Republican, I don’t support an effort to invoke the 25th Amendment,” he said. “Now if something else happens all options would be on the table.”
Here’s what you need to know about the 25th amendment
What is the purpose of the 25th amendment?
It was ratified by Congress and the states following the assassination of President John F. Kennedy, on the logic that it was quite possible that the attempt could have led to “the permanent incapacity to exercise the duties of the highest office of the land,” according to former Democratic Indiana Sen. Birch Bayh, who led the effort to pass the amendment. Today, many in the GOP are arguing that President Trump has become incapable of exercising his duties.
“All indications are the president has become unmoored, not just from his duty or even his oath but reality itself,” Republican Rep. Adam Kinzinger, said in a video message Thursday morning. “It is for this reason that I call for the vice president and members of the cabinet to ensure the next few weeks are safe for the American people and that we have a sane captain of the ship.”
How would the 25th Amendment be invoked?
Section 4 of the amendment provides for instances when the president can’t or won’t admit that he is incapable of carrying out his duties.
“In these circumstances, the section authorizes the vice president and a majority of the cabinet … to declare the President to be disabled,” Thomas Neale a specialist in American national government for the Congressional Research Service wrote in a report published in 2018.
If Vice President Mike Pence and seven other members of President Trump’s cabinet were to make this declaration, Pence would assume the powers of the presidency after a message to this effect is sent to the President pro tem of the Senate and the Speaker of the House.
What would be the president’s recourse?
President Trump would likely not accept this outcome and could fight to retain his powers by trasmitting a message to the leaders of Congress that no disability actually exists.
The Vice President and the cabinet, however, can contest this by providing a second written declaration contradicting the president.
Under such circumstances Trump would not retake power immediately, according to Brian Kalt, constitutional law professor at Michigan State University.
When the president contests the cabinet’s findings “he does not take power back right away,” Kalt told MarketWatch. “What happens in then a four-day period starts and in that four days, the vice president and a majority of the cabinet can reassert that he is incapacitated and then it sends the issue to Congress.”
Congress can confirm that the president is unable to discharge his duties with two-thirds majorities in both the House and the Senate, but it has 21 days to make this determination.
“If Congress decides by a two-thirds vote of both houses that the President is unable to discharge the duties of the office, the vice president continues as acting president until the disability is resolved,” Neale wrote. “If the two-thirds margin is not obtained, or if Congress is in session at the time but does not vote on the question within 21 days of receiving the requisite declaration, then the President resumes the powers and duties of the office.”
This 21-day period could give Congress means to keep Vice President Pence in power through Biden’s inauguration, even if there aren’t the votes in Congress to get the two-thirds majority needed to declare Trump indefinitely disabled. Simply declining to vote on the measure would enable Congressional leaders to run out the clock on Trump’s presidency.
Invoking the 25th Amendment may be a better option than impeachment for Congressional leaders, if they believe that Trump presents an immediate threat. “You can invoke the 25th Amendment in a couple of minutes,” Kalt said. “Impeachment and removal would take days, at least, and he would remain in power in the meantime.”
Has the 25th Amendment ever been used before?
President Ronald Reagan informally invoked the amendment when he underwent anesthesia for a surgical procedure, and it was formally invoked under similar circumstances by President George W. Bush in 2002 and 2007.
In the above instances, power was transferred to the Vice President for only a matter of hours. The act has never been used to declare a president incapacitated against his will.