Home 2017 Races Does the 25th Amendment Apply Here?

Does the 25th Amendment Apply Here?


The following piece is my weekly op/ed for newspapers in my very red congressional district, VA-06.


What should be included in the notion of the President being “unable to discharge the duties of his office”? (That’s wording in the 25th amendment relating to the circumstances in which a President might be removed.)

Clearly, it would include circumstances like those in 1919, when President Woodrow Wilson was incapacitated by a serious stroke. And it’s probably safe to assume that the framers of the 25th Amendment, back in the 1960s, did not envision a situation like that which confronts the United States today.

So we’re left to ask, for example: If the President, for reasons of his emotional and cognitive habits, were judged unable to make his decisions based on what is best for the United States and its people, would that qualify?

Repeatedly, on a host of issues, Trump issues statements that – if they are sincere – show a failure to grasp the factual realities of the situation.

  • He keeps claiming that Iran is in violation of the nuclear deal, whereas his own cabinet officers, the governments of our main allies, and the International Atomic Energy Agency (IAEA) all affirm that Iran is in compliance.
  • He keeps claiming that the Affordable Care Act is in a death spiral, whereas the experts declare that untrue—except for Trump deliberately working to make it true by sabotaging it.
  • He both talks and acts as if he sees no reason that nuclear weapons cannot be used, whereas – for generations — it has been the considered judgment of American and other world leaders that a top priority for humankind is to assure that nuclear war is avoided.

So, if the President were to be judged unable to get a realistic grasp of the facts pertinent to the decisions he makes, would that demonstrate an inability to discharge his duties?

Never has anyone been so closely watched, and widely discussed, as Donald Trump. And many careful observers have concluded that many of Trump’s decisions are dictated by an emotion-based grudge, driving him to undo the accomplishments of his predecessor, President Obama.

Thus late last week, President Trump took unilateral measures to undo Obama’s signature domestic achievement by defunding the health care subsidies –despite Trump’s move meaning $200 billion in greater costs to the U.S. government, and hurting millions of Americans.)

Trump also attacked Obama’s biggest international achievement – starting to nullify the deal to block Iran’s development of nuclear weapons, contrary to the counsel of his national security team.

On the Iran deal, virtually no one – even those who have had reservations about that agreement — thinks that Trump’s move is in the interests of the United States.

  • Trump’s action not only contravenes the counsel of his own team, but also is opposed by our major allies (the U.K., France, and Germany) who are also party to the agreement, thus further isolating the United States.
  • Trump’s threatened termination of the agreement will make it far more likely that Iran will build nuclear weapons—the very outcome Trump claims he’s seeking to prevent.
  • Abrogating the agreement will likely leave the U.S. with far worse choices with Iran: either watching it become a nuclear power, thus destabilizing a region vital to American interests; or going to war against Iran, which all analysts say would be a nightmare.
  • Trump’s demonstration that the United States cannot be trusted to keep its word will eliminate whatever chance there may have been to reach a negotiated agreement with North Korea about its own nuclear program—for the North Koreans will see no value in making an agreement with a power that can’t be counted on to honor the deal?

If all this is just to stick a finger in the eye of former President Obama, would that show him “unable to discharge the duties of his office”?

Elsewhere, while the situation of the American citizens on Puerto Rico remains appalling, weeks after the hurricane, the President continues to deal with this disaster in a completely uncaring, irresponsible way. Some say that Trump is punishing the people of the island in retaliation for the criticism leveled against him by the mayor of San Juan.

If that were true that Trump’s vindictive impulses overrule his presidential responsibilities, would such dereliction of duty constitute an inability to discharge the duties of his office?

President Trump seems irrepressibly drawn to create conflict—alienating allies (attacking leaders in his own Party, disrespecting America’s traditional friends, sowing division in the nation over such matters outside of the scope of presidential authority as protests at NFL games; lashing out at critics (as if having critics isn’t part of being president); and exacerbating tensions with adversaries like the North Koreans – while appearing also indifferent to finding ways to bring Americans together to cooperate for the good of the nation.

So far in office, while dismantling previous American accomplishments, Trump has built virtually nothing to improve the condition of the country. And meanwhile, no foreign policy experts can see a plausible strategy behind his escalating the prospects of a catastrophic war with North Korea.

If it were judged that Trump’s character leads him toward destructiveness, and renders him incapable of generating constructive outcomes, would that be incompatible with “the duties of his office”?

Concern about Trump’s increasingly evident “unfitness” for his office are now rampant, even among Trump’s cabinet and the Republicans in Congress.

Even if there’s no sign those people are willing to act to protect the nation against the danger the see, we the people should still ask: do all these factors add up to a picture of a President who is “unable to discharge the duties” that we, the American people, have a right to consider requirements of the office of the President?

  • Sure, but zero chance of it happening, given that VP Pence and a majority of Trump’s hand-picked Cabinet would have to vote to ditch him. Not. Happening.

    • Andy Schmookler

      Quite likely, you’re right, Lowell.

      It should be noted, however, that a measure is being introduced in Congress (by Jamie Raskin — good Democrat from Maryland), that calls for an independent commission to be given the task of making such a judgment, rather than the VP and the Cabinet.

      The amendment does make provision for its happening that way, saying that it can be initiated by a ” “majority of either the principal officers of the executive departments or of such other body as Congress may by law provide”,

      That being said, the outcome remains unlikely. First, passage of Raskin’s measure must be a long-shot.

      Second, Trump would be certain to contest that judgment, which would mean that 2/3 of both the House and the Senate would have to vote to remove him from office.

      Maybe the Rs would be ready to do such a thing after Trump blows up the world with a war over NK nukes, but it’s unclear what he could do short of that — shoot TWO people on Fifth Avenue? — that would move them to the point where they’d see greater danger to themselves from keeping Trump than by dumping him. (It has been a long time since the R Party has shown any concern for the good of the nation.)

      Nonetheless, there is a useful purpose to the article: chipping away at his support. I see that the most recent polls show that Trump’s support among Republicans is steadily slipping. So though it has proved sticky, that support is not set in stone.

      • “a measure is being introduced in Congress (by Jamie Raskin — good Democrat from Maryland)”

        Ergo, not happening either.

      • Kenneth Ferland

        I don’t see that bill passing constitutional muster, at best Congress might create a body which might advise the cabinet, but no one but the cabinet could initiate the temporary removal of the president.

        • Andy Schmookler

          The language I provided above was the actual language of the 25th amendment– a ” “majority of either the principal
          officers of the executive departments or of such other body as Congress
          may by law provide.”

          So this idea of another body, provided by Congress, is not some iffy notion that couldn’t pass “constitutional muster.” It is right there in the Constitution.

          • Kenneth Ferland

            My apologies I was unaware of that provision, it is indeed kosher. Refreshing my constitutional knowledge it reads ‘When the vice president and…’ prior to your quote. So Pence would have to agree with the congressionaly appointed body or the cabinet, not that hard to imagine as the agreement would make him president.

          • Andy Schmookler

            You’re right, Kenneth Ferland, that the Vice President is still included in the process even if the Congress creates an alternative body. (“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…”)

            It seems to leave open the initiation of the process to that “body,” and not just the VP. It would be interesting to see how Pence would deal with such a thing. (But I am not expecting this to play out– but neither do I rule out such a scenario.)

            One advantage that the VP has over the members of the cabinet: Trump can’t fire him. Pence was elected VP as much as Trump was elected P.

  • Dave Webster

    No Trump is not “disabled” pursuant to the 25th Amendment. Disabled means physically or mentally incapable (eg due to a stroke) of carrying out the duties of the office. It doesn’t allow liberals to remove a President from office merely because they don’t like the President. With regard to Iranian compliance with the nuclear deal Iran is NOT in compliance. Iran has refused to allow IAEA inspectors to visit the Parchin military site. With regard to the use of nuclear weapons, even President Obama said with regard to Iran “all options are on the table.”

    The assertion “virtually no one” thinks President Trump’s stance toward Iran is a good idea is laughably false. Here is an article by Iranian expatriot and journalist Amir Taheri praising Trump’s stands. https://english.aawsat.com/amir-taheri/features/trumps-new-strategy-iran-takes-bull-horns

    • Andy Schmookler

      It is not clear how you arrive at your certainty at what “unable to discharge the duties of the office” means. The Constitution is deliberately framed to leave matters — “due process,” “unreasonable search and seizure,” etc.– sufficiently unspecific as to make the document flexible. So it is with the 25th amendment.

      Regarding Iranian compliance or non-compliance:

      This from Reuters: ” U.S. Defense Secretary Jim Mattis said on Tuesday
      Iran was fundamentally in compliance with its nuclear deal,”

      From VOX: “The International Atomic Energy Agency, which is in charge of monitoring the deal, has repeatedly certified that Tehran is complying with the
      limits on its nuclear program. The Trump administration has yet to
      produce any evidence to the contrary.”

      And yes, you’re right that it people can be found who think blowing up the Iran deal is a good idea. You could bring in the redoubtale John Bolton, whose hawkishness was too extreme to get him confirmed even during the W administration.

  • Kenneth Ferland

    If the writers of the 25th had meant for only physical disability to be valid they would have done so. And in any case ‘liberals’ are not going to be the ones doing this, ONLY the cabinet can use the 25th amendment (some folks who have been talking about the 25th are not making this clear), the cabinet members are the people who work with the president directly and on a daily basis and are his trusted subordinates and political allies, so partisanship is never a question here.