Eric Posner is a professor at the University of Chicago Law School.
President Trump's tenure has exposed a defect in our constitutional system: A president can be impeached and removed from office if convicted of high crimes and misdemeanors. He can be removed, under the conventional understanding of the 25th Amendment, if he is incapacitated by mental or physical illness. But there is no obvious solution for a president who has not committed a crime or been disabled by illness, but has lost the confidence of the public because of a failure of temperament, ideology or ability.
The current understanding of the 25th Amendment should be enlarged so as to provide authority to address this problem, through creation of a Presidential Oversight Council empowered to recommend removal of the president on political rather than medical grounds. When both the president's party and the opposing party lose confidence in the president's ability to govern, the council would stand ready to evaluate him and make a recommendation to Congress. Congress would be required to vote on its recommendation.
Certainly, the authors of the 25th Amendment had in mind presidents who suffered from illness while in office, such as Woodrow Wilson after his stroke. But they deliberately used broad language that goes beyond psychological or physical disability. The amendment refers to a president who is "unable to discharge the powers and duties of his office." This language does not specifically refer to mental or physical factors as the source of the inability, and thus allows removal of a president whose incompetence results from other reasons — including a failure of temperament, ideology or ability.
The amendment explicitly authorizes Congress to create a "body" that, together with the vice president, is responsible for informing Congress that the president is unable to discharge the powers and duties of his office. There is no requirement that medical professionals serve in that body. It may consist of whomever Congress chooses.
Congress should create such a council and staff it not with medical professionals (as proposed in a bill this spring by some Democrats in Congress), but with senior elected officials of both parties — the top Republican and Democratic elected officials in Congress, plus a few governors as well. The body would be required to meet periodically and verify that the president is able to discharge his powers and duties. Of course, it would be permitted to consult with medical and mental health experts, but they would not have any power to make decisions.
The council would consist of an equal number of Democrats and Republicans, and it would be able to declare the president's unfitness based on a two-thirds majority vote. Such an arrangement means that the president would remain in office unless he lost significant support from his own party, including his own vice president. This would never happen — unless the president was truly incompetent.
But I mean incompetent in a political sense, not a mental sense. By politically incompetent, I mean incompetent to exercise the powers of the presidency in a way that meets the approval of the president's party as well as the opposing party. This could be because the president's values fall outside the mainstream (either they have changed while in office or he concealed them while running for office); he lacks the interest or attention span to inform himself about issues; or he lacks management abilities and is unable to govern effectively.
What would be the advantages of this council over impeachment? The problem we currently face is that Trump may be incompetent to hold office even if he has not committed crimes of sufficient weight to justify impeachment. Impeachments are oriented toward specific acts, akin to criminal trials, while the problem we currently face — and may face in the future — concerns the president's character.
The Presidential Oversight Council, in contrast, would be able to evaluate the president's overall ability based on all of his behavior in office. Because the council would be a standing body, oversight of the president would be normalized and wouldn't require the sort of crisis that motivates impeachment proceedings.
Creating such a council would also produce some immediate practical effects. It would allow Republicans to demonstrate the gravity of their concerns about Trump's behavior without forcing them to take a stand on impeachment, which would surely fail. It would be ready to spring into action if Trump, or any future president, showed signs of incapacity to govern. It would reinforce the notion that the president does not govern alone but must maintain the support of Congress and other institutions in the much-maligned but essential "political establishment." And it would give notice to Trump and his aides that outrageous behavior will no longer be tolerated and is not shielded by the Constitution.