The 25th Amendment Pipe Dream

Marc LaFountain -

Senator Elizabeth Warren and others have called for Vice President Mike Pence and a majority of the Cabinet to invoke the 25th Amendment if they believe President Donald Trump is unable to do his job. Invoking the 25th may make sense ethically and morally. But there is zero chance the amendment will be invoked. And, it shouldn't be.

Let's look at the relevant part of the 25th Amendment:

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives 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 either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Vice President Pence and a majority of the Cabinet would have to move against President Trump when the president has an 85 percent approval rating with Republicans. They would have to do this knowing that the 2018 mid-terms are less than two months away and that the 2020 Republican primaries are less than two years away. That they would do this is a liberal fantasy. But we'll go with it for a moment.

Let's break down what would happen if the 25th were invoked:

  • Vice President Pence would become Acting President as soon as he and a majority of the Cabinet transmitted "to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office."
  • This Acting Presidency would likely only last for a matter of hours or even for a matter of minutes. President Trump would almost immediately transmit "to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists." (The 25th Amendment doesn't address whether the transmission can be done via Tweet. I suspect this would be the transmission method.) Trump would then be president again.
  • Presumably, Vladimir Putin, Xi Jinping, and Kim Jong-un would all be having a good laugh during this time period. And, who knows how China, Russia, and North Korea would try to use this moment of chaos to their political or military advantage. U.S. financial markets would also likely crater during this period if they are open.
  • Vice President Pence and a majority of the Cabinet would then "transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office."
  • Trump would still remain president. Congress would convene within 48 hours if not already session. Congress would have to decide within 21 days whether to keep Trump or to go with Pence. Going with Pence would require a two-third majority in both houses of Congress.
  • Republicans in the Senate and House considering supporting Pence would have to do so knowing the president again has an 85 percent approval rating with Republicans. They would have to do this knowing that again the 2018 mid-terms are less than two months away and that again the 2020 Republican primaries are less than two years away.
  • Until the Congress resolves the issue, the presidency would exist in a state of near paralysis. Our adversaries would likely continue to take advantage of the chaos. And, our financial markets would continue to crater.
  • In the end, Trump would likely remain president. It is unlikely that two-thirds of Congress would vote to remove him given his solid support with Republican voters. So, all of this likely would have been for nothing.

In the unlikely event a smoking gun surfaces implicating Trump in Russian efforts to sway the 2016 U.S. presidential election, he might be impeached. Failing that, we're all riding this nightmare roller coaster until at least January 20, 2021.

Main blog post image by John Bakator.