Who Can Invoke The 25th Amendment? It Takes A Village
The now-famous New York Times op-ed this week has sparked anew the conversation around whether President Donald Trump might be vulnerable to removal from office under the 25th Amendment. Though there is plenty of speculation floating around, especially after a series of damning accounts of the president's behavior, it's pretty tricky to remove the president from power using that amendment. Unlike impeachment, it's not up to Congress whether the constitutional lever gets pulled. So, who can invoke the 25th Amendment, and how does it work?
The 25th Amendment was amended in 1967 after the assassination of President John F. Kennedy, according to NPR, and was designed so that those closest to the president had a protocol in place in the event that he was unable to perform his duties. The process for invoking it is fairly complicated, and intentionally so — only in truly grave situations would it be applied.
In short, only the vice president can invoke the amendment. (So, all eyes are on you, Mike Pence.) But he can't move forward with it alone. According to the full text of Section 4, the VP must do so in conjunction with either a majority of the heads of federal agencies (his cabinet) or a special "body" as designated by Congress.
Once either of those groups (including the VP) decides to invoke it, they send a statement to the Senate pro tempore declaring that they find the president unable to "discharge the powers and duties of his office." This immediately relieves the president of his powers, installing the VP as acting president temporarily.
The president can then counter with a letter of his own, basically refuting his staff's declaration, which restores him to power for four days. If the VP-plus-cabinet body comes back with a second declaration within that time, the VP takes over once more. This second declaration triggers a 48-hour window in which Congress must assemble, and two-thirds of both the House and the Senate must vote in favor of removing the president within 21 days for it to go through.
It's even more tricky because the standard for removing a president this way is "inability," a vague term that could apply to something obvious (like death or disappearance) or something more enigmatic like mental fitness, for which an assessment might be required. As Yale Law Professor Harold Koh told NPR, when President Ronald Reagan was assessed for showing signs of dementia, he was "in good health" that day, so it was a dead end.
Chatter about Trump's fitness for office came up again this week thanks to the Times op-ed. The author scathingly describes a president who operates erratically, ignorantly, and impulsively. (It's a mystery, by the way, who wrote the piece, but there's a growing list of White House staffers and senior officials who've denied doing it.)
But the anonymous staffer/op-ed writer went a step further by explicitly stating that those from inside the president's own inner circle have not ruled out the 25th Amendment, writing:
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. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until — one way or another — it's over.
In light of the staffer's damning account of the president, Sen. Elizabeth Warren, Democrat of Massachusetts, gave her full-throated approval for that idea, telling CNN that it was time for Trump's cabinet to "do their job" and remove him from office.
Though it was the match that sparked the "25th" conversation this time, the Times op-ed was not the first time someone with inside knowledge of Trump has labeled him incompetent. A growing body of literature has also painted similar pictures about a dysfunctional presidency and the dysfunctional president at its helm. (See: Michael Wolff's Fire and Fury: Inside the Trump White House, Omarosa Manigault Newman's Unhinged, and Bob Woodward's upcoming Fear: Trump in the White House.) Taken together, it's no wonder the composite character of Trump has led many to seriously consider whether the constitutional card might actually get played. But whether that actually happens is extremely unlikely, as the Times points out, in part because the process alone is so difficult.