Jurisprudence

Is Invoking the 25th Amendment Actually a Better Option Than Impeaching Trump?

A masked Mike Pence looking stern in front of an American flag.
Vice President Mike Pence, who would become acting president if Donald Trump is sidelined under the 25th Amendment, at the Capitol on Wednesday. Erin Schaff/Pool/Getty Images

Following Donald Trump’s incitement of insurrection on Wednesday, Senate Majority Leader Chuck Schumer called on Vice President Mike Pence to invoke the 25th Amendment. Other Democratic lawmakers—and, to a lesser extent, Republicans—have echoed Schumer’s demand, arguing that Trump must be removed from office immediately. Some politicians—most notably Chair of the House Democratic Caucus Hakeem Jeffries—have taken a more traditional route, demanding Trump’s swift impeachment.

There is at least one major benefit to the 25th Amendment that’s not provided by impeachment: It would immediately sideline the president, transferring his full authority to Pence. But there are a number of drawbacks that make the amendment a potentially dangerous weapon to wield against an unhinged president. To better understand its advantages and risks, I spoke with Michigan State University College of Law professor Brian C. Kalt, who wrote the book on the amendment. Our conversation has been edited for length and clarity.

Advertisement
Advertisement
Advertisement

Mark Joseph Stern: What, exactly, does Section 4 of the 25th Amendment do?

Brian C. Kalt: Section 4 is for when the president can’t or won’t say that he’s unable to discharge the duties of his office. The vice president and a majority of the Cabinet invoke the amendment, declaring the president unable. They send that declaration to the speaker of the House and president pro tempore of the Senate. As soon as they transmit it, the vice president becomes acting president and the president is sidelined.

Does that mean the president is out of office?

No, he’s not. It’s a provisional temporary transfer of power. The whole point of the amendment was to provide a mechanism for the president to take power back.

Advertisement

If the president says no inability exists, he does not take power back immediately. He starts a four-day waiting period. The vice president and the Cabinet have four days to reassert that the president is unable. During those four days, the vice president remains in charge. If they don’t say the president is still unable within four days, the president takes power back. If they do still think he’s unable, that sends the question to Congress. If Congress isn’t in session, they have two days to reconvene, but there’s a 21-day limit on how long they can debate. If, after 21 days, they haven’t voted to keep the president out, then he takes power back. During those 21 days, if both the House and Senate vote, by two-thirds, that the president is unable, then the vice president remains as acting president. If, at any time during those 21 days, one chamber votes and doesn’t get two-thirds, then the president takes power immediately.

Advertisement
Advertisement

There’s less than 21 days left in Trump’s term. Could Congress just run out the clock?

If Congress wanted to run out the clock, that would require not voting. Maybe they could run out the clock. But if either the House or Senate votes and they don’t get two-thirds, Trump takes power back immediately. If they do vote to keep him out, Trump is still president and the vice president is still acting president. People talk about the 25th Amendment as removing the president from office, but it never does that.

What can the president do while he’s sidelined?

The real president is stripped of powers. The vice president has full executive powers. But the president is still president, which makes it awkward: What do you do with him? What if he is up and around and contesting it? Section 4 really is meant for situations when the president is in a coma or otherwise unable to contest the action. When you’re in that situation, it works easily and quickly. If the president is unconscious, the 25th Amendment makes it easy to transfer power. If he’s not, the 25th Amendment makes it hard to transfer power.

Advertisement
Advertisement

Which Cabinet members get to vote on presidential disability?

When Congress was writing the 25th Amendment, it identified the heads of executive departments. Only they can vote.

Do acting secretaries get to vote? Trump has three of them right now.

The legislative history goes both ways. You have the House committee saying acting secretaries definitely count—they’re in charge of the department, they have all the powers of the secretary, so they get to do it. On the Senate side, Sen. Birch Bayh said the opposite. I come down on the side of saying they should be able to participate, but it’s not clear.

Is there anything to prevent Trump from firing a secretary who is poised to invoke the 25th Amendment against him? 

Advertisement

No. And that’s another reason why I think the amendment is not really designed for the situation where the president can contest it. It doesn’t work well.

But Congress can substitute the Cabinet for a “body” of its creation to gauge the president’s inability, right?

Yes. If Congress decides that the Cabinet isn’t the best body to fulfill this role, they can legislate a replacement. You still need the vice president to sign onto Congress’ other body. Rep. Jamie Raskin has been introducing a bill to do this to get doctors involved. It hasn’t gotten very far. Until and unless they get a veto-proof consensus, it’s not really relevant.

Advertisement

So how does the Cabinet—or, in theory, another body established by Congress—decide what counts as an inability under the 25th Amendment? 

Advertisement

The Constitution doesn’t nail down the standard; it provides who the decision-maker is, that gives us the standard. You could say “inability” means he’s really bad at being president. But you’re going to need to convince not just the vice president and Cabinet, as well as two-thirds of the House and two-thirds of the Senate. That’s a really high bar. If the issue is the president is doing bad things, it would be easier to impeach and remove him because then you wouldn’t need two-thirds in the House; it can impeach by a simple majority. You wouldn’t need the vice president or the Cabinet either. The 25th Amendment bar is so high that it is not really well suited for use in those situations where the president is able enough to contest the action.

Advertisement

What is the 25th Amendment well suited for, then?

If the president is unconscious or otherwise unable to communicate. Or if the president is unhinged in some way and in imminent danger of doing something irreparable, like nuking a country because he has gone off the deep end. The only way to stop that from happening in the moment is to use Section 4 of the 25th Amendment. That might be a situation in which that instant effect is a risk worth taking.

Advertisement

Can you envision a scenario in which invoking the 25th Amendment against a president who is deranged but not unconscious would be better than commencing an impeachment?

I think there are situations in which it’s important enough to get the president’s powers stripped, because impeachment doesn’t have that instant effect. You might need to get those powers stripped pending impeachment. The 25th Amendment uses a broad term, “unable,” which can accommodate that if the situation warrants it. There are situations in which the imminence of the threat creates a plausible argument that the president is not just doing bad things but is actually off his rocker. That might make it potentially OK, if still problematic.

Advertisement

Does the situation warrant it today?

I don’t think it’s appropriate to use right now. There were points on Wednesday when I could see why someone would say that. If things had continued spiraling, we wouldn’t have been able to wait for impeachment. A deranged, unhinged president arguably does meet the 25th Amendment standard.

But you still favor impeachment to deal with a president like Trump.

The 25th Amendment is designed not to work. It isn’t a way to get rid of the president. It really is supposed to be about when he’s incapacitated, not doing bad things. Impeachment is for bad things. Now, I’m not in the Cabinet. I don’t know what’s going on behind closed doors in there. I would just say the bar is really high. And when people latch onto something in the moment that could solve their problem—without thinking about what this tool is actually for and what happens when you lower the bar—I think that’s dangerous, too. There has to be a really clear, present, and significant danger. The bar is high.

Advertisement