Opinion

Opinion | Laurence H. Tribe

The chaotic aftermath of invoking the 25th Amendment

President Trump with Vice President Mike Pence on the South Lawn of the White House earlier this year.
Evan Vucci/Associated Press
President Trump with Vice President Mike Pence on the South Lawn of the White House earlier this year.

As fears mount over President Trump’s mental stability, more lawmakers and public-spirited citizens are turning in desperation to the 25th Amendment as a quick exit. But they should resist the temptation to pull that trigger. Because of the amendment’s complexity and many ambiguities, activating it to sideline Trump could unleash a dangerously destabilizing power struggle over the presidency rather than decisively ousting Trump.

Early in Trump’s term, scholars (including me) explained that the amendment was designed for presidents who unexpectedly become mentally or physically incapacitated while in office, not those temperamentally unfit from the very outset. We believed that Trump fell only in the latter category.

Yet now we must ask: Should that verdict be changed by the frightening episodes recounted in tell-all books, an anonymous op-ed, and a flood of disturbing press clippings? Whatever one’s answer, it’s hard to avoid serious consideration of the 25th Amendment when a cabal of senior officials conclude they must steal papers from the leader’s desk and disregard his craziest orders.

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The amendment was added in 1967, principally to resolve long-unsettled questions about what happens when a president dies or is removed from office (Section 1); when the vice presidency becomes vacant (Section 2); or when a president himself, due to a cause like impending surgery, declares that he is “unable to discharge the powers and duties of his office” (Section 3). Of course, none of those situations are relevant today.

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Accordingly, Section 4 presents the only pertinent option: Trump would lose power following a written transmittal by Vice President Mike Pence and a “majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” that Trump is “unable to discharge the powers and duties of his office.” As Congress has created no other body to substitute for the “principal officers of the executive departments,” this leaves 22 such officers, counting several close cases like chief of staff, US trade representative, and UN ambassador.

But what would implementing Section 4 actually mean? Here’s a likely scenario:

Shortly after learning of his team’s betrayal, the president would tweet: “The dirty dozen are FIRED.” Calling them traitors, he would add that he doesn’t regard some of them to be “principal officers of the executive departments.” He could exploit ambiguity here, because the Constitution itself doesn’t say who qualifies.

In response, Acting President Pence would lay claim to the Oval Office, quoting Section 4’s mandate that he “shall immediately assume the powers and duties of the office as acting president.” Emphasizing the word “immediately,” Pence would insist that Trump had lost the power to fire anyone, including his Cabinet, after the Section 4 statement was transmitted.

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But he would surely find President Trump at his desk, flanked by the White House counsel and armed Secret Service agents. Trump would contest the vice president’s interpretation. He would also hand Pence a copy of his time-stamped “written declaration that no inability exists,” as transmitted to Congress in the wee hours (just before his tweet firing Cabinet officials). Citing ambiguous constitutional text, Trump’s lawyers would argue that this transmittal automatically and immediately entitled him to “resume the powers and duties of his office.”

Pence might respond that the provisions giving him and the principal officers “four days” to challenge Trump’s “declaration . . . of no inability” prevent Trump from immediately reacquiring power. Pence would add that these provisions give Congress “twenty-one days after receipt” of dueling letters to “decide the issue . . . by two-thirds vote of both Houses.” Those provisions would make little sense if a president could fire the Cabinet in the midst of a constitutional conflict over his inability.

Pence’s lawyers would also insist that, if Congress were to decide against Trump, the president would be sidelined for the remainder of his term. Trump, though, could argue that the amendment is silent on that point — and that he is free to contest his alleged disability every few weeks, triggering new votes in Congress each time. Here, too, the amendment would provide little explicit guidance in choosing between Pence’s preference for stability and Trump’s observation that a disability might be temporary.

More fundamentally, Trump might quote Senator Birch Bayh, the amendment’s principal author, to support his claim that Section 4 cannot be applied to someone capable of articulating his own mental fitness, regardless of what procedure is followed. Trump might also invoke the historical study by John Feerick identifying Section 4 as principally contemplating such situations as those “in which the President is kidnapped or captured, under an oxygen tent at a time of enemy attack, or bereft of speech or sight.”

Pence, in turn, would insist that the 25th Amendment’s basic purpose reaches beyond the specific examples its authors and ratifiers may have had in mind. Relying on his own observations and those of the Cabinet, Pence would insist that Trump cannot safely be deemed capable of discharging his powers and duties.

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As the almost comical foregoing sequence of readings and counter-readings shows, the 25th Amendment was not written with an eye to resolving controversies of this kind. Nothing in its text, structure, or history offers safe passage through the labyrinth of alternative readings. Nor does the Amendment explain clearly how to bounce this ball back and forth among competing branches of the government when the president actively resists his own disempowerment.

Unlike the Impeachment Clause, carefully structured to leave only a single ambiguity — defining the meaning of “high crimes and misdemeanors,” which it entrusts to the House and Senate — the 25th Amendment is painfully ambiguous not only as to the meaning of “unable to discharge,” but also as to who may do what to get this Rube Goldberg machine going. And that is a recipe for instability and chaos, the very outcome that those advocating use of the amendment should be seeking to avoid.

Laurence H. Tribe, university professor and professor of constitutional law at Harvard Law School, is coauthor, most recently, of “To End a Presidency: The Power of Impeachment” with Joshua Matz. Follow him on Twitter @tribelaw.