How The 25th Amendment Works, And Why It May Not Be The Trump-Removing Tool Some Hope It To Be

Senior Contributor
01.08.18 6 Comments

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Things are not going well for the Trump administration. The president is afraid to take questions from the press, and the Russia investigation and potential for obstruction of justice charges continue to build momentum. A recent tell-all book added explosive allegations (backed up by recordings) to the mix, and allegations of Trump’s poor mental health are flying everywhere.

All of this has plenty in Washington thinking about the 25th Amendment. So what is the 25th Amendment? And why wouldn’t it work on Trump?

  • The 25th Amendment is all about presidential succession: If the president dies, the vice president takes over, right? Well, yes, now. But until the late 1960s, that wasn’t spelled out in the U.S. Constitution. It was more a matter of tradition than anything else. So, between 1965 and 1967, the 25th Amendment was ratified by the states to spell out what happens if a president dies or becomes incapacitated.
  • In this case, we’re talking about Section 4: Believe it or not, presidents staying in office while being unable to do their jobs was a real problem without any legal precedent. In 1919, Edith Bolling Galt Wilson, Woodrow Wilson’s wife, essentially took over running the country after Wilson suffered a debilitating stroke. Section 4 was designed to create a process instead of having spouses simply fill in.
  • The burden of proof, so to speak, on Section 4 is very high, however: The vice president and 13 members of the Cabinet have to decide that the president is not competent to do his job. They must put that in writing and send that to the House speaker and the Senate president pro tempore. That would makes the vice president the “acting president.” However, all the president has to do is send his own declaration to the House and Senate saying he’s fine (and in this case, probably come up with a crude nickname for his VP). If the VP and Cabinet still disagree, they can send the legal equivalent of a note saying, “Nope.”
  • Then Congress gets involved: Basically, if the president and the rest of the executive branch are arguing, then the House and Senate vote. If two-thirds of both Houses agree the president can’t do his job, then the VP takes over as acting pesident.

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