Can the Vice President invoke the 25th Amendment to remove Trump?
Following a violent riot at the U.S. Capitol involving supporters of President Donald Trump, some politicians have called for the impeachment of the outgoing president. Others have called for Vice President Mike Pence to use the 25th Amendment to remove Trump from power.
A vice president has never done that before, so what’s Pence’s authority here?
Can the Vice President invoke the 25th Amendment to remove the president from power?
Yes, but he needs approval from half the president’s cabinet to do so. Then, in the situation where the president challenges the removal, he needs both chambers of Congress to approve it.
WHAT WE FOUND.
The text of the 25th Amendment makes it clear that there are two ways to invoke the 25th Amendment: by the president’s request or by action of the vice president and the Cabinet.
It says, “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.”
Essentially, that means the vice president and over half of the president’s cabinet must agree to remove the president from power and promote the vice president to acting president. Then, they must submit notice to Congress and then the vice president takes over.
But the process doesn’t end there.
The president can challenge his removal, and then Congress gets several weeks to vote upon it. Two-thirds of both chambers must approve of the president’s removal for the vice president to remain acting president.
According to the Congressional Research Service, there have been only three instances in which the 25th Amendment has been invoked, and each time was by the president’s request.
In 1985, President Reagan made George H.W. Bush Acting President in a letter prior to a surgery in which it was necessary for him to go under anesthesia. Reagan’s letter did not specifically mention the 25th Amendment by name.
President George W. Bush briefly gave up the reigns of the presidency in both 2002 and 2007 for routine colonoscopies that similarly required anesthetics. Bush returned to the presidency after two hours in both instances. Both times Bush specifically invoked the 25th Amendment.
Never has a vice president forced a president out of office through use of the 25th Amendment.
WASHINGTON – In the more than 50 years since the Constitution was amended to create a way to remove a president unable to do his job, the process has never been triggered.
But throughout Donald Trump’s presidency, the 25th Amendment has come up again and again as a possible means of removing Trump to put Vice President Mike Pence in charge.
With days left in his tenure, the amendment was mentioned again after Trump supporters violently stormed the Capitol on Wednesday to protest the results of the presidential election that Joe Biden won.
The head of the National Association of Manufactures said Trump incited the violence in an attempt to retain power and Pence should consider triggering the amendment to preserve democracy.
“This is sedition and should be treated as such,” said Jay Timmons, the group’s president and CEO.
He was joined by a growing chorus of calls that included the head of the left-leaning advocacy group Public Citizen, the head of the NAACP and Vermont Gov. Phil Scott, a Republican.
“President Trump should resign or be removed from office by his Cabinet, or by the Congress,” Scott said in a series of tweets.
Hundreds of political scientists have signed a letter saying Trump should be immediately removed either through impeachment or the 25th Amendment.
Here’s what you need to know:
What is the 25th Amendment?
The amendment, ratified in 1967, created a legal mechanism for designating a head of state when the president is disabled or dead. It also formalized the historical practice for the vice president to permanently take over if the president dies or resigns, and gives the president and Congress shared power to replace a vice president.
Why was it written?
John F. Kennedy’s assassination brought renewed interest to presidential succession questions. Lyndon B. Johnson’s ascension to the presidency meant that – for the 16th time – the country had no vice president. And there was no tested way of dealing with a severe presidential illness. Johnson previously had suffered a heart attack and the next two people in line to be president were the 71-year-old speaker of the House and the 86-year-old president pro tempore of the Senate.
Has it been used before?
Gerald Ford followed the first two sections of the amendment when becoming Richard Nixon’s vice president after Spiro Agnew resigned and when he become president after Nixon’s resignation. The amendment’s third section, which allows for a president to temporarily cede power and duties to a vice president, was used once after Ronald Reagan underwent surgery in 1985 and similarly when George W. Bush was under anesthesia in 2002 and 2007. The fourth section, a process for removing a president when others believe he is “unable to discharge the powers and duties of his office,” has never been used.
When did the author intend the 4th section to be invoked?
Late former Sen. Birch Bayh wrote in his book “One Heartbeat Away: Presidential Disability and Succession” that he knew the most controversial aspect of the amendment he authored would be how to handle the rare instances when a president’s team disputed his ability to serve.
“You know, fellows, we’ve talked about this problem a hundred times,” Bayh recounted, telling his aides when they were in the final stages of negotiation. “The only time it would present itself – the only time the president would say ‘I’m well and able’ and the vice president and cabinet would disagree – would be if the president was as nutty as a fruit cake.”
Why the renewed interest?
The amendment got new attention after Trump’s inauguration and re-emerged as a top talker after some of Trump’s controversial comments and actions, or because of inside reports about the workings of the White House.
In 2017, for example, Trump triggered questions about his stability when he tweeted he has a bigger “nuclear button” than Kim Jong Un of North Korea.
Michael Wolff’s “Fire and Fury,” painted a picture of a president not up to the job.
“It’s not unreasonable to say this is 25th Amendment kind of stuff,” Wolff said in a 2018 appearance on NBC’s “Meet the Press.”
In an opinion piece published anonymously by the New York Times in 2018, a former top aide at the Department of Homeland Security wrote that Cabinet members had “whispered” about invoking the 25th Amendment because of Trump’s increasing erratic behavior.
Soon after, the New York Times reported that Deputy Attorney General Rod Rosenstein discussed invoking the 25th Amendment when the White House had been plunged into chaos after the firing of FBI Director James Comey. Rosenstein called the story “inaccurate and factually incorrect.”
Andrew McCabe, former acting director of the FBI, said in 2019 that the suggestion came up more than once and was so serious it was discussed with FBI lawyers.
The Justice Department disputed McCabe’s characterization of discussions about the 25th Amendment but did not deny that they had taken place.
When Trump contracted COVID-19 last year, the amendment was mentioned as a backup if his condition worsened and the disease affected his thinking.
How could the 25th Amendment be triggered?
The vice president and a majority of the Cabinet could declare the president unable to “discharge the powers and duties of his office.” If the president disputes that determination, two-thirds of both the House and the Senate must vote to put the vice president in charge.
In addition, lawmakers can designate through legislation an alternative group – other than the Cabinet – that the vice president could work with to declare a president unable to serve.
Is the amendment clear on what qualifies as an inability to serve?
No. And Jay Berman, one of the Bayh aides who worked on the amendment, said that was intentional.
“It didn’t settle the issue of what it is,” he said in an interview. “It provided a mechanism for addressing the issue.”
Is it likely to be used?
Pence has never indicated that he questioned Trump’s ability to be president.
In 2019, Pence called “any suggestion” of triggering the amendment “absurd.”
Despite Pence’s unfailing loyalty to Trump, however, the president rebuked him Wednesday after Pence said he would not break the law and use his constitutional position as president of the Senate to try to stop Congress from counting the electoral votes.