House Speaker Nancy Pelosi said Oct. 8 that she’s preparing an announcement about the 25th Amendment — exciting Democrats who consider the measure a way to depose President Trump.
The less than 400-word constitutional amendment was ratified in 1967 after numerous concealed health issues, especially the heart ailments suffered by President Dwight Eisenhower.
The amendment says that a president can be involuntarily stripped of his powers if he’s unable to fulfill his duties.
Trump is back at the White House after three nights of hospitalization over the weekend for COVID-19 treatment.
The president said Oct. 6 and Oct. 7 that he has no symptoms, but Pelosi on Oct. 7 said on “The View” that Trump’s use of the steroid dexamethasone to combat the virus may impede his judgment.
She raised the specter again the next day over Trump’s comment to Fox Business, “I’m back because I am a perfect physical specimen and I’m extremely young.”
How does the 25th Amendment work?
There are four sections to the 25th Amendment, each dealing with a different aspect of presidential or vice presidential succession.
Section 1 says the president is replaced by the vice president if he dies or resigns. Section 2 says replacement vice presidents must be confirmed by a majority of both chambers of Congress. Section 3 allows the president to voluntarily and temporarily transfer duties to his vice president.
And Section 4 allows the vice president and Cabinet — or another entity chosen by Congress — to take power from the president without their consent.
How can power be taken from a president?
There are two ways that a president can be forcibly and temporarily stripped of power under Section 4 of the amendment.
The amendment says “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” must make a “written declaration that the President is unable to discharge the powers and duties of his office.”
Spokespeople for Vice President Mike Pence did not immediately respond to a request for comment, but it’s unlikely that Pence and a majority of Trump’s Cabinet would strip him of power as they campaign together ahead of the Nov. 3 election.
Congress has not passed a law describing an alternative entity authorized with making that decision, though the amendment allows lawmakers to do so.
Michigan State University law professor Brian Kalt wrote in a Lawfare blog analysis in 2019 that “Section 4 does empower Congress to replace the Cabinet by designating an alternative group through legislation, but Congress has never done so and the president would presumably veto any such attempt in the middle of an actual struggle.”
It’s unclear if Pelosi intends to push for a new legislative procedure to oust a president. But even if such a bill passed the House, it would fail in the Republican-held Senate.
How is Section 4 different from impeachment?
Impeachment provides Congress a process to remove presidents for undefined “high crimes and misdemeanors,” whereas Section 4 of the 25th Amendment allows only temporary removal of a president if they are unable to perform their duties.
Under Section 4, a vice president would become “Acting President” if there’s a declaration the president cannot serve. Congress must review the finding of presidential incapacitation within 25 days and vote by two-thirds in each chamber that the president is indeed temporarily unable to serve.
There’s legal debate about whether the amendment covers mental illness of a president.
Saint Louis University law professor writes in a recent analysis, however, that “[t]he legislative history confirms that mental incapacity was a primary concern of the Amendment,” citing debate in Congress from the 1960s.
House Democrats already impeached Trump in December, but the Republican-held Senate acquitted him of charges he abused his power and obstructed Congress.
Democrats impeached Trump on the non-criminal charges for encouraging Ukraine to investigate Democrats, including presidential candidate Joe Biden and his son Hunter, who earned a reported $83,000 a month on the board of energy company Burisma while his father led the Obama administration’s Ukraine policy.
Has the 25th Amendment ever been used?
Section 3 of the 25th Amendment was invoked several times, including in 2002 and 2007 when President George W. Bush underwent general anesthesia for colonoscopies. In 1985, President Ronald Reagan transferred his powers to Vice President George H.W. Bush for about eight hours when he had a precancerous lesion removed from his colon.
In 1974, Gerald Ford became president pursuant to Section 1 when President Richard Nixon resigned facing impeachment. Four months later, Congress voted to approve, pursuant to Section 2, Ford’s nomination of former New York Gov. Nelson Rockefeller to be vice president.