This high threshold is consistent with original understanding. The Twenty-Fifth Amendment was not enacted as an off-ramp for citizens who regret selecting an unfit or unqualified president. Rather, it was ratified in 1967, following the assassination of John F. Kennedy, to address enduring confusion about three discrete issues in presidential succession. Section 1 of the amendment clarified that when a president dies, resigns, or is removed, the vice president “shall become President.” This provision resolved uncertainty about whether the vice president fully became president or merely held the powers of that office in an acting capacity. Section 2 authorized the president to nominate a new vice president “whenever there is a vacancy in [that] office.” This part of the Twenty-Fifth Amendment altered the historical practice of leaving such vacancies unfilled until the next presidential election.
Finally, Sections 3 and 4 addressed cases of presidential incapacity. In so doing, they brought order and transparency to a problem once handled through irregular, secretive, and sketchy practices. During the War of 1812, for example, James Madison went AWOL for a full month while suffering a high fever; Daniel Webster subsequently reported that Madison had been too weak to read. Nearly seventy years later, after James Garfield was wounded by an assassin in July 1881, the nation lacked a functioning head of state for eighty days until the president finally expired. In 1893, when Grover Cleveland developed a malignant oral tumor, his advisors kept everyone in the dark by arranging for secret surgery on a friend’s private yacht. Even Vice President Adlai E. Stevenson didn’t know Cleveland’s whereabouts. From September 1919 through March 1921, Woodrow Wilson’s formidable wife—Edith Wilson—effectively ran the White House while he was immobilized by a stroke. And following a heart attack, an intestinal obstruction, and a mild stroke, Dwight Eisenhower entered into a public agreement with Vice President Richard Nixon to transfer power in the event of his own disability.
The architects of the Twenty-Fifth Amendment had examples like these in mind when they crafted rules for presidential incapacity. Section 3 of the amendment applies when the president anticipates that he will be incapacitated. It allows him to temporarily transfer authority to the vice president by submitting a written declaration that he is “unable to discharge the powers and duties of his office.” The president can later reclaim control by submitting a second declaration “to the contrary,” which automatically restores his constitutional power.
In contrast, Section 4 covers situations in which the president cannot or will not declare his own incapacity. It creates a three-step process. First, the vice president and a majority of the cabinet must declare that the president is “unable to discharge the powers and duties of his office.” At that time, the vice president “shall immediately assume the powers and duties of the office as Acting President.” Second, if and when the president declares that “no inability exists,” he regains his authority four days later—unless the vice president and a majority of the cabinet formally declare within this period that he remains incapacitated. If that occurs, the third and final step of Section 4 is triggered: Congress must assemble within forty-eight hours and then decide, within twenty-one days, whether the president is truly incapacitated. The vice president remains “Acting President” while Congress deliberates. In order to keep the president out of power, two-thirds majorities in both the House and the Senate must separately conclude that he is incapacitated. If either chamber of Congress does not do so within the constitutionally-prescribed period, the president’s power is automatically restored.
As if that weren’t complicated enough, there are a few more quirks to Section 4’s process for resolving disputes over presidential incapacity:
• Section 4 can never be used without the vice president’s concurrence. But Congress can swap out the cabinet and instead require the concurrence of a majority of any other body (including itself). Moreover, Congress can do this at any time—including in the middle of an incapacity dispute, if it loses faith in the cabinet. To make this change, however, Congress might have to overcome a veto from whoever is serving as president.
• If Congress leaves concurrence authority with the cabinet, it is unclear whether acting agency heads may vote. This would matter a great deal if the allegedly incapacitated president has fired the Senate-confirmed heads of any cabinet departments.
• The legislative record shows that the framers of the Twenty-Fifth Amendment believed it would be appropriate to impeach the vice president if he abused his powers—or acted in bad faith—during a Twenty-Fifth Amendment proceeding.
• In deciding whether the president is incapacitated, Congress is free to use any procedures that it deems necessary. In principle, it could require the president to undergo medical tests, or could require that he submit to questioning in a public forum.
• If Congress upholds a finding of incapacity, the president may contest it repeatedly. Each contest would require the House and Senate to vote within twenty-one days; if the president mustered over one-third support in either chamber on any vote, his power would be restored.
Finally, it’s important to recognize that Section 4—unlike conviction on articles of impeachment—doesn’t formally remove the president from office. He remains the president, which is why he may continue to contest the incapacity finding. But he doesn’t possess “the executive Power,” which devolves on the vice president during a period of incapacity.
The constitutional mechanism established by Section 4 thus has a distinct Rube Goldberg quality, with gears and levers and complex procedures for bouncing the ball back and forth among branches of government. In the face of a contested incapacity finding, it could run continuously for years until the allegedly incapacitated president’s original four-year term comes to an end.
It is this extraordinary process that some political commentators would now deploy to banish Trump from the White House. In their view, his post-inauguration conduct demonstrates that he is “unable” (in all relevant senses) to discharge the powers and duties of his office.
That conclusion draws some support from statements by senior officials who are well positioned to assess Trump’s state of mind. Former Secretary of State Rex Tillerson reportedly remarked that Trump is a “fucking moron.”47 Multiple sources claim that National Security Advisor H. R. McMaster blasted Trump as an “idiot” and a “dope,” with the mind of a “kindergartner.”48 Republican Senator Bob Corker mocked the Trump White House as an “adult day care center.”49 And former Director of National Intelligence James R. Clapper, Jr. has stated, “I really question his ability to be—his fitness to be—in office.”50
Other executive branch insiders appear to share this assessment. In May 2017, conservative New York Times columnist Ross Douthat painted a grim picture of Trump’s interactions with White House staff: “They have no respect for him, indeed they seem to palpitate with contempt for him, and to regard their mission as equivalent to being stewards for a syphilitic emperor.”51 Seven months later, Joe Scarborough of MSNBC echoed Douthat’s assessment: “Many who move through his orbit believe Trump is not well. That is a verdict that was reached long ago by many of the president’s own staff.”52 Elsewhere, Scarborough claimed that “one of [the] people closest to Donald Trump during the campaign [says] he’s got early stage dementia.”53
These statements are consistent with unattributed quotes in national newspapers warning that Trump is unstable, unhinged, and unraveling. Anonymous reports from the White House describe a leader who erupts at subordinates without rhyme or reason, blithely dashes out world-shaking tweets, seems unable to read lengthy memos, espouses insane conspiracy theories, and obsessively watches cable news. Based on such accounts, some armchair psychologists have purported to diagnose Trump with a host of mental ailments, including a severe case of narcissistic personality disorder.54
In January 2018, following a series of especially shocking leaks, criticism of Trump’s mental capacity reached a boiling point. Trump responded by tweeting th
at he’s “like, really smart” and “a very stable genius.”55 Trump also requested that his physician administer a cognitive test designed to assess his mental reflexes. (Although Trump got a perfect score on this exam, many medical experts noted that it was limited in scope and couldn’t detect an array of neurological and psychological disorders.56)
These developments have fueled unprecedented interest in Section 4 of the Twenty-Fifth Amendment. In an op-ed that helped to jump-start public discussion of the issue, Douthat argued that Trump should be ousted because he can’t perform basic duties of the presidency:
One does not need to be a Marvel superhero or Nietzschean Übermensch to rise to this responsibility. But one needs some basic attributes: a reasonable level of intellectual curiosity, a certain seriousness of purpose, a basic level of managerial competence, a decent attention span, a functional moral compass, a measure of restraint and self-control. And if a president is deficient in one or more of them, you can be sure it will be exposed. Trump is seemingly deficient in them all.57
Douthat’s conservative colleague David Brooks has rendered a similar verdict on Trump: “We’ve got this perverse situation in which the vast analytic powers of the entire world are being spent trying to understand a guy whose thoughts are often just six fireflies beeping randomly in a jar.”58
Although these criticisms of Trump’s temperament and intelligence are amply justified, they don’t (yet) show “inability.” Senator Birch Bayh, the main architect of the Twenty-Fifth Amendment, explained that “inability” means the president “is unable either to make or communicate his decisions as to his own competency to execute the powers and duties of his office.”59 According to an authoritative historical study by Professor John D. Feerick, “cases involving a mental inability were generally referred to as falling within [Section 4], as were situations in which the President is kidnapped or captured, under an oxygen tent at a time of enemy attack, or bereft of speech or sight.”60
Simply put, the president must in fact be mentally or physically unable to carry out his constitutional functions. This is a high bar that requires objective proof of genuine incapacity. If the president is capable of doing his job, the Constitution doesn’t authorize a transfer of power merely because he can’t do it well. Professor Feerick’s treatise confirms that “unpopularity, incompetence, impeachable conduct, poor judgment, and laziness do not constitute an ‘inability’ within the meaning of the Amendment.”61
Efforts to give the Twenty-Fifth Amendment a much broader scope are not only historically unjustified; they also risk political illegitimacy and instability. Commentator Ezra Klein has convincingly explained the perils of ending Trump’s presidency this way:
To many of Trump’s supporters—and perhaps many of his opponents—this would look like nothing less than a coup; the swamp swallowing the man who sought to drain it. Imagine the Breitbart headlines, the Fox News chyrons. And would they truly be wrong? Whatever Trump is today, he was that man when he was elected too. The same speech patterns were in evidence; the same distractibility was present. The tweets, the conspiracy theories, the chaos: It was all there. The American people, mediated by the Electoral College, delivered their verdict; mustn’t it now be respected?62
To be sure, it’s possible for a president to rapidly degenerate after taking office. But that isn’t the real basis for most calls to depose Trump.
As a result, there’s no avoiding the fact that Trump’s basic mental defects were known to voters and he was elected anyway. The Twenty-Fifth Amendment was designed for presidents who unexpectedly become mentally or physically incapacitated while in office; it isn’t properly (or legitimately) applied to a president who was temperamentally unfit from the very outset. As Professor Keith Whittington has emphasized, “empowering a set of political elites to overturn the judgment of the people on the question of the general fitness of an elected official takes a large step toward autocracy.”63 Particularly in an era of democratic decline, that is not a step we should take unless there is an unmistakable national consensus in favor of doing so.
For all these reasons, we’re not persuaded—as of mid-March 2018—that Trump has manifested “inability” in the relevant sense of the term. Instead, we agree with Washington Post columnist Jennifer Rubin: the Twenty-Fifth Amendment “is not meant for a situation in which the president is so stupid as to raise questions about whether he is a danger to the country.”64
As Trump’s case highlights, allegations of mental incapacity in the Oval Office may present uniquely difficult questions. Anticipating those difficulties, the Twenty-Fifth Amendment—much like the Impeachment Clause—establishes a multi-layer decision making process. An examination of how this political process is structured, and how it likely would work in practice, confirms that it would be imprudent to try to sideline a president whose mental incapacity is open to reasonable debate.
In thinking about that issue, it’s important to recall that the Constitution doesn’t strip the American people of their right to elect leaders with mental illnesses. Nor does it require presidents who suffer depression, anxiety, or other mental ailments to step aside. Indeed, as Professor Jeannie Suk Gersen reports, “[m]any Presidents in our history appear to have served while managing various forms of mental illness.”65 That all said, there surely comes a point at which Alzheimer’s disease, crippling depression, a psychotic break, or other mental problems can render a president incapacitated within the meaning of the Constitution. When signs and symptoms of such presidential disability become evident, the vice president and cabinet have an inescapable duty to act. They needn’t hold back until disaster befalls.
Responding to the subjectivity and potential illegitimacy inherent in such mental health determinations, advocates of sidelining Trump through the Twenty-Fifth Amendment often frame their argument in clinical terms. Citing prominent psychiatrists from elite schools, they offer detailed accounts of Trump’s diagnosable mental illnesses. The overall effect is to give their criticism an objective, scientific air: It’s not that we disagree with him or dislike him; it’s that he’s certifiably crazy. But the Twenty-Fifth Amendment does not enact the Diagnostic and Statistical Manual of Mental Disorders into law. Nor does it vest psychiatrists with control over the presidency. In a democracy, political decisions of this magnitude can never be reduced wholly to clinical assessments. When a finding of presidential “inability” requires reasonably debatable judgment, medical science can only get us so far.
Recognizing that fact, the Constitution protects the requirement of genuine “inability” by creating an extraordinary decision-making process. The vice president always must concur. Unless Congress says otherwise, so must a majority of the cabinet, whose members have been hand-picked by the president and work closely with him in many contexts. Usually, most of these men and women will belong to the same political party as the president and will feel intense personal loyalty to him. Vesting initial control in this group reduces the odds of unsavory political shenanigans. As Professor Cass Sunstein points out, “the real risk is not that the Twenty-Fifth Amendment will be invoked when it shouldn’t, but that it won’t be invoked when it should.”66 Of course, even if the president’s inner circle decides that he lacks the capacity to govern, the president can still prevail by persuading one third of either house of Congress that he can do his job. Here, too, Section 4 of the Twenty-Fifth Amendment is weighted overwhelmingly in favor of allowing the duly elected president of the United States to exercise the powers of his office.
These constitutional procedures are well-suited to cases where the president is in a coma, has suffered a devastating stroke, or has been kidnapped. In those situations, the president hasn’t done anything impeachable but clearly can’t perform his constitutional functions. It should be uncontroversial to declare that the vice president will serve as acting president.
In contrast, it makes little practical sense to attempt a Twenty-Fifth Amendment ouster of someone like Trump, who is lucid and
capable of using his executive powers. As Professor Brian Kalt notes, “a president who is competent enough to read public musings about Section 4 can preemptively fire Cabinet members he suspects of plotting against him. This would serve a double purpose: showing that he is able to discharge the powers and duties of his office; and stacking the Section 4 decision-making deck.”67 Further, if the vice president and the cabinet took action against Trump by submitting a declaration to Congress, the aggrieved president could rally his base and wage a spectacular legislative battle. In that fight, Trump would have many opportunities to publicly address the claim that he is mentally incapacitated. And even if Congress did find him disabled, Trump could keep the dispute alive by repeatedly declaring his own competence to govern—thus forcing new votes in Congress every few weeks.
In the interim, the nation would remain trapped in a divisive, disruptive, and profoundly traumatic cycle of contested presidential legitimacy. No matter how firmly one believes that Trump’s mental deficiencies threaten our democracy, this isn’t a responsible way to address the problem.
The main exception that comes to mind is a circumstance in which Trump gives a truly insane, destructive order—for example, to secretly launch a nuclear first strike. In that event, the vice president and the cabinet should invoke Section 4 to immediately dispossess him of power. Once the crisis has been contained, Section 4 can keep Trump under control while Congress conducts full impeachment proceedings to permanently remove him from office.
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