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The toothless 25th amendment

February 19, 2019

Despite Trump’s nonsense tweet otherwise, applying the 25th Amendment’s process against him would not be illegal. It is part of the Constitution. Suggesting its application is no more treason than suggesting impeachment. Should it be done? Dr. Dee Mosbacher makes the medical case. For which the tweet just linked is one piece of evidence. Charles Pierce makes the common sense case. Elizabeth Warren makes the patriotic case.

And none of that matters one hoot.

I wish more of those talking about the 25th Amendment would read it. It was not designed to remove power from a president who wants to hold it, who is capable of expressing that, and who retains the support of his party. No matter how crazy he might be. Now, yes, the fourth clause does begin with this: “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.”

But it then allows the president, acting on his own, to resume his duties: “Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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.”

That creates an obvious conflict. Which gets resolved by Congress: “Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”

Notice it takes two-thirds of both houses of Congress to remove a president who says he is fit, despite his cabinet saying otherwise. Removal by impeachment is easier, requiring only a majority of the House, and two-thirds of the Senate. And this president has done plenty deserving impeachment.

Arguably, the 25th Amendment provides a route for the cabinet to prod Congress, which might then act when it might not otherwise. Again, let’s be real. Trump’s cabinet? Fuggedaboutit.

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