The 25th Amendment is back in the news following the protests at the US Capitol building.
We’ll hear a lot about whether it will be used to remove President Donald Trump from office before he officially leaves on January 20.
Here’s what it’s all about.
The amendment was ratified in the wake of John F. Kennedy’s assassination and debilitating illnesses of Dwight D. Eisenhower — and it requires a crisis on that level to be enacted.
In order to remove Trump using the 25th Amendment, a majority of the Cabinet he personally selected, working with his own vice president (Mike Pence), would have to agree he was no longer able to be President and publicly make that declaration, in writing, and send it up to Congress. That’s the first thing.
Trump would then have the ability to publicly disagree, in writing. And if his Cabinet reasserted, within four days, “their written declaration that the President is unable to discharge the powers and duties of his office,” Congress would have to assemble within two days and two-thirds of both the House and Senate would have to vote to remove the President within 21 days. They’re not known for moving quickly.
Read the full amendment text at the National Constitution Center’s website. They also have a number of articles on the amendment, some of which raise questions about its text. For instance, it doesn’t use the term “Cabinet officials,” but rather “principal officers of the executive department,” so you can imagine the courts getting involved in a contentious process. And a further side note: the only time the amendment was briefly considered by a President’s staffers was for Ronald Reagan, who staffers thought for a time was “inept and inattentive,” according to a memo at the time. They ultimately moved on from the idea.
There is one more thing. Let’s call it an amendment hack.
This according to lawyer George Conway.
The twenty-fifth amendment could be used to take Donald Trump out for the rest of his term. If the VP and a majority of the cabinet were to certify Trump’s inability to carry out the duties of his office, Pence would become acting president. The next thing that would happen is that Trump would say, no, I’m able to carry out my duties, and he’d resume his office .again in four days, unless the VP and the cabinet again certified Trump’s inability to carry out his duties.
At that point, the matter goes to Congress, which has 21 days to affirm the Cabinet’s decision. But by then Joe Biden would be president, so there would never ave to be a congressional vote (it takes 2/3 of both houses to sustain the finding of inability). In other words, the Vice President and a majority of the Cabinet could sideline Trump for the rest of his term, since there are only two weeks left in it.
It’s hard to imagine all of this happening quickly enough to be effective – particularly before January 20 when Joe Biden officially moves into the White House but there is a slim chance.