This article was originally published in September 2018.
At the time, there was no formal process for transferring that power to another person. So in 1965, Congress approved the 25th Amendment, which was ratified by the requisite number of states two years later. In addition to formalizing that the vice president would assume the duties of the presidency in the event of a president’s death, removal from office or resignation, it instituted a process by which a living president could be removed from office.
Which is why it keeps coming up in the era of President Trump.
There have been multiple stories about people close to the president questioning his fitness for the office. One of the most notable came this month, when an anonymous administration official wrote an opinion piece for the New York Times alleging that Trump’s “instability” had Cabinet members quietly discussing the removal procedures in the amendment early in Trump’s first year.
Such whispers got a poster child Friday afternoon, with a Times report identifying Deputy Attorney General Rod J. Rosenstein as having discussed the 25th Amendment in conversations at the Justice Department after Trump fired James B. Comey as FBI director. According to the Times, Rosenstein told then-FBI Deputy Director Andrew McCabe, himself fired earlier this year, that “he might be able to persuade Attorney General Jeff Sessions and John F. Kelly, then the secretary of homeland security and now the White House chief of staff, to mount an effort to invoke the 25th Amendment.”
So what does this mean? Allow us to explain.
The relevant component of the amendment is Section 4, which reads:
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.
That’s how the vice president takes over. But there’s a provision for the president to get his job back.
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.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.
That’s a lot of text. We spoke with Louis Seidman, the Carmack Waterhouse professor of constitutional law at Georgetown University, to explore just how complicated this scenario could get.
1. Trump is removed from power.
The first part of Section 4 establishes the two groups that could determine that Trump (or any president) can no longer carry out the duties of the presidency.
- The vice president (Mike Pence) plus a majority of the Cabinet (“the principal officers of the executive departments”), or
- The vice president and a body established by Congress.
That second group — let’s call it a presidential competency commission — doesn’t exist. Establishing one would require a law, meaning the Senate and House passing a bill that Trump would then sign. It seems safe to say that it’s unlikely Congress would pass a bill creating a body to judge Trump’s competency, much less that Trump would bring it into existence with his signature.
Congress could, of course, override a Trump veto with a two-thirds vote of support in both chambers. That, too, is highly unlikely — but remember the end of this particular rabbit hole because it will come up again later.
Note that the amendment doesn't articulate what causes might justify the president's removal. It could be a coma. It could be an alien assuming control of the president's brain. It could essentially be anything.
It could certainly include mental fitness, according to Seidman.
"The language would certainly cover an emotional or mental disability that prevented the president from doing his job,” he said.
So let’s say that either this competency commission was created and ruled against Trump or that a majority of the Cabinet agreed that Pence should take over. If Pence concurred (the most possible aspect of this), there would be a written document created expressing that opinion that would then be given to the president pro tempore of the Senate — Sen. Orrin G. Hatch (R-Utah) — and to the speaker of the House — Rep. Paul D. Ryan (R-Wis.).
Once Hatch and Ryan got the letter, Pence would be president, just like that. His term would run until Jan. 20, 2021.
2. Trump objects.
Well, his term would run until 2021 unless Trump objected. If Trump’s in a coma until 2023, Pence stays president. But if the Cabinet decides to oust Trump and Trump decides he would rather stay, he can send a written statement of his own to Hatch and Ryan and get his job back.
It’s important to note that it’s only Trump who can send this letter. Melania Trump can’t ask Hatch and Pence to reinstate him, nor can Chief of Staff John F. Kelly. It has to be Trump.
So let’s say that he does this on Oct. 1.
3. Pence et al. still disagree.
That date is important because the 25th Amendment provides a four-day window for the vice president and either the Cabinet or the commission to respond. Meaning that if they don't offer a written response to Hatch and Ryan by Oct. 5, Trump stays president.
There are a few unanswered questions about this. The first is who is president for those four days. Seidman noted that it isn’t “perfectly clear which clause modifies which clause” and, therefore, hard to know whether Trump is president until Pence et al. reply or whether they maintain the presidency for those four days, giving it up if they don’t object. Seidman figured it was the former, that Trump became president immediately. None of this has been tested in real life, of course, and it’s safe to assume that such a fight would end up before the Supreme Court.
Update: Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University, argues that there’s clarity on this point. According to one of the drafters of the amendment and to subsequent floor debate, the vice president (here, Pence) retains the position during this period.
The other question that arises from this section of the amendment is who can object to Trump's reassertion of power. If Pence joins with the commission to oust Trump, can he then join with the Cabinet to oppose Trump's reinstatement? Probably, according to Seidman.
This back-and-forth raises an interesting prospect, though. Trump could be removed from power at noon and reassert his power at 1 p.m. Pence and the Cabinet (or commission) could then again say that Trump is unfit for office, triggering the next and final step in the process.
But Pence would have already been the president of the United States from 12 p.m. to 1 p.m. on the day in question.
4. Congress weighs in.
Once Pence and his friends respond to Trump by way of a letter to Hatch and Ryan, it is up to Congress to decide Trump’s fate.
Congress has to vote, within 21 days (or, if it’s not in session, it has to get back in session within two days, then triggering the 21-day counter) on who should be president. This vote, like an override of a veto or a constitutional amendment, would take a two-thirds majority in each chamber. That’s 67 Senate votes and 291 in the House.
If two-thirds rule that Trump isn't fit, Trump's gone — for good. Pence becomes president.
At least until 2021. There’s nothing at all stopping Trump from running for election in 2020 and winning his seat back.
We’ve now traversed every distinct path in this rabbit warren, bringing us back to reality. Despite that report about Rosenstein, none of this is particularly possible, for hundreds of reasons dealing with politics, psychology and loyalty. The appeal of the 25th Amendment to those skeptical of Trump is clear: It sidesteps a Republican-led Congress that has been reluctant to begin investigations that might lead to Trump’s impeachment.
But, however unlikely impeachment is, Seidman was blunt. “It seems much more possible that he’d be impeached than that any of this would happen,” he said.
“Although,” he said, recognizing the weirdness of the political moment, “who knows.”