The 25th Amendment to the U.S. Constitution deals with presidential authority in the event of death or removal from office, and was ratified in 1967.
What does the 25th Amendment say?
It is in four sections. The first section states that the vice president takes over the Oval Office if the president dies or resigns – or is removed – something which the original Constitution did not clearly state.
Presidents can be removed by impeachment or through the 25th Amendment, which the Constitution’s framers included as a less dishonorable way of discharging a gravely ill chief executive.
Section II states that if the vice president dies or resigns – or is fired – both the House and Senate have to confirm a new vice president, whose only real constitutional duty is to serve as president of the Senate.
Section III makes clear that the a president can temporarily delegate his powers to the vice president, and later reclaim them when he is capable of serving. This is most often invoked if a president is under the influence of surgical anaesthetic for a short period of time.
Section IV is featured in the op-ed, and is the amendment’s most controversial part.
It describes how the president can be removed from office if he is incapacitated and does not leave on his own.
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 write to both the president pro tempore of the Senate and the Speaker of the House, saying that ‘the President is unable to discharge the powers and duties of his office.’
Practically speaking, this means at least eight of the president’s 15 most senior Cabinet members, together with the vice president, must agree that a president should be removed before any plan can move forward.
Notifying the House Speaker and the Senate president pro tempore is the act that immediately elevates the vice president to an ‘acting president’ role.
The deposed president can contest the claim, giving the leaders of the bloodless coup four days to re-assert their claims to the House and Senate.
Congress then has two days to convene – unless it is already in session – and another 21 days to vote on whether the president is incapable of serving. A two-thirds majority in both houses is required to make that determination.
If Congress can’t reach that threshold within 21 days, the president regains his powers. If it can, his powers go back to the vide president and he is dismissed from office.
What could happen to trigger the 25th Amendment?
Vice President Mike Pence and eight of the 15 ‘principal’ Cabinet members would have to agree to notify Congress that President Donald Trump was incapable of running the country.
That group inludes Secretary of State Mike Pompeo, Treasury Secretary Steve Mnuchin, Secretary of Defense James Mattis, Attorney General Jeff Sessions, Interior Secretary Ryan Zinke, Agriculture Secretary Sonny Perdue, Commerce Secretary Wilbur Ross, Labor Secretary Alexander Acosta, Health and Human Services Secretary Alex Azar, Transportation Secretary Elaine Chao, Energy Secretary Rick Perry, Education Secretary Betsy DeVos, Veterans Affairs Secretary Robert Wilkie and Homeland Security Secretary Kirstjen Nielsen.
Their formal notification would go to House Speaker Paul Ryan and Utah Sen. Orrin Hatch, who holds the title ‘president pro tempore’ as the Senate’s most senior member. As soon as the letter is sent, Pence would become ‘acting president.’
What if Trump does not agree?
If Trump claims he iscapable of holding office, he would write to Hatch and Ryan within four days, setting up three weeks of intense debate in both houses of Congress.
Trumpn would be removed from office if both two-thirds majorities in both the House and Senate agreed with Pence and his cabal. If either of both chambers fell short of that mark, Trump would retain his powers and likely embark on a wholesale housecleaning, firing Pence and replacing disloyal Cabinet members.
Are there any loopholes?
The 25th Amendment allows Congress to appoint its own panel of experts to evaluate the president instead of relying on the Cabinet – the men and women who work most closely with Trump – to decide on acourse of action.
It specfies that some ‘other body as Congress may by law provide’ could play that role, but Pence would still need to agree with any finding that the president is incapable of discharging his duties.
If Democrats were to take over both the House and Senate, they could create such a panel with simple majority votes.
That commission could hypothetically include anyone from presidential historians to psychiatrists, entrusted to assess the president’s fitness for office.
Could Trump fire Pence if he rebelled?
Yes, in principle. If Trump smelled a whiff of trouble – if Pence and a panel assembled by Congress seemed ready to judge him incapacitated – he could dismiss his vice president with the stroke of a pen to stop the process.
But installing a more loyal VP could be problematic since the 25th Amendment includes its own poison pill: Both houses of Congress must vote to approve a new vice president.
That means Trump would find himself up against the same Congress that started the ball rolling, unless the process were to unfold in the weeks before a new Congress is seated on January 3, 2018.
Theoretically, a Democratic-controlled Congress could make life dramatically more difficult for the president if it came into power in the midst of the constitutional crisis.
One scenario has appeared to stump presidnetial historians, however: Firing Pence before the process is underway, and then leaving the vice presidency vacant, would give Congress no practical way forward.
Is there any precedent for this?
No. Only Section III, the voluntary surrender of presidential powers, has ever been used.
In December 1978, President Jimmy Carter thought about invoking Section III when he was contemplating a surgical procedure to remove hemorrhoids.
Presidents Ronald Reagan and George W. Bush both voluntarily relinquished their powers while undergoing procedures under anesthetic.
Section IV has also never been invoked, although there have been claims that Ronald Reagan’s chief of staff Donald Regan told his successor, Howard Baker, in 1987 that he should be prepared to invoke it because Reagan was inattentive and inept.
The PBS documentary ‘American Experience’ recounts how Baker and his team watched Reagan closely for signs of incapacity during their first meeting and decided he was in perfect command of himself.