{"id":16748,"date":"2019-06-11T01:12:08","date_gmt":"2019-06-11T01:12:08","guid":{"rendered":"https:\/\/www.lifeandnews.com\/articles\/?p=16748"},"modified":"2019-06-12T06:38:04","modified_gmt":"2019-06-12T06:38:04","slug":"the-25th-amendment-wouldnt-work-to-dump-trump","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/the-25th-amendment-wouldnt-work-to-dump-trump\/","title":{"rendered":"The 25th Amendment wouldn\u2019t work to dump Trump"},"content":{"rendered":"

Erik M. Jensen<\/a>, Case Western Reserve University<\/a><\/em><\/p>\n

Here\u2019s some advice for frustrated impeachment advocates who think there might be other ways to force Donald Trump out of office: The 25th Amendment<\/a> won\u2019t help you.<\/p>\n

But that hasn\u2019t stopped people from trying.<\/p>\n

Andrew McCabe<\/a>, former deputy director and acting director of the FBI, gave the Constitution\u2019s 25th Amendment a shoutout<\/a> in February.<\/p>\n

In an interview with \u201c60 Minutes<\/a>,\u201d McCabe claimed that people in the Department of Justice, including Deputy Attorney General Rod Rosenstein and McCabe himself, had discussed trying to get a majority of the Cabinet to agree to remove Donald Trump from office. (Rosenstein denied the story<\/a>, but it didn\u2019t go away.)<\/p>\n

If that majority vote is all the amendment requires, it would provide a much easier process than impeachment to dump a president.<\/p>\n

\u2018Doomed to failure\u2019<\/h2>\n

Writing in The Wall Street Journal<\/a>, prominent conservative lawyers David B. Rivkin and Lee A. Casey wrote that, if those DOJ discussions in fact took place and were serious, the participants were part of \u201ca conspiracy by government officials against American democracy.\u201d<\/p>\n

That sounds awful, but any such technical conspiracy \u2013 if that\u2019s what it was \u2013 was doomed to failure.<\/p>\n

If the DOJ lawyers thought getting rid of a president \u2013 this one or a future holder of the office \u2013 was easy, they hadn\u2019t studied the amendment\u2019s language.<\/p>\n

I\u2019m a professor of law<\/a> \u2013 a tax professor at that. I\u2019m used to parsing difficult legal language, and I\u2019ve written about constitutional issues as well as ones that arise in bean-counting. The 25th Amendment is a complex law that is, by design, very hard to use.<\/p>\n

Roots in Kennedy assassination<\/h2>\n

A little history: The 25th amendment was ratified in 1967. A primary purpose<\/a> was to provide a way to fill the vice presidency when that office becomes vacant.<\/p>\n

Two events prompted the legislation. After the Kennedy assassination in 1963, Lyndon Johnson had no vice president<\/a> until Inauguration Day 1965. Harry Truman had no vice president for over three years<\/a> after he became president.<\/p>\n

Since then, the amendment\u2019s system to fill the vice presidency has worked as intended, twice, and without controversy. The first was in 1973, with Gerald Ford, after Spiro Agnew was forced to resign<\/a> after pleading no contest to a tax evasion charge. The second was in 1974, when Nelson Rockefeller became vice president after Nixon resigned<\/a> and Ford became president.<\/p>\n

The amendment also sets out processes<\/a> for the vice president to become \u201cacting president\u201d in two situations.<\/p>\n

The first, the easy case, is when the president himself sends a written declaration to the speaker of the House and the president of the Senate that \u201che is unable to discharge the powers and duties of his office.\u201d<\/p>\n

The president says, in effect, \u201cI can\u2019t handle the job right now, but I\u2019ll be back.\u201d<\/p>\n

The vice president steps in temporarily, and the president reassumes presidential duties when he notifies congressional leaders that he\u2019s up to it.<\/p>\n

This part of the amendment has been applied, without fanfare, a couple of times<\/a> when a president was going to be briefly incapacitated because of anesthesia. Some historians believe that having a formal method for a temporary transfer of power would have been helpful when Dwight Eisenhower had serious health problems<\/a>.<\/p>\n

Fuzzy rules<\/h2>\n

But the rules applicable to the other situation in which a vice president can become acting president are much less clear.<\/p>\n

Somehow the idea got around \u2013 reflected in the alleged DOJ discussions<\/a> \u2013 that, if some officials think a president is incapacitated, but he disagrees or is so out of it that he can\u2019t voluntarily step aside, a majority of the cabinet can promote the vice president.<\/p>\n

I believe that understanding is wrong.<\/p>\n

To begin with, under the 25th Amendment it\u2019s \u201cthe Vice President<\/em> and a majority of either the principal officers of the executive departments or such other body as Congress may by law provide\u201d who must make the declaration of incapacity to congressional officers.<\/p>\n

If Vice President Pence sides with the president \u2014 as I believe he would unless Trump were clearly incapacitated \u2014 it doesn\u2019t matter what Cabinet officials think.<\/p>\n

And \u201cprincipal officers of the executive departments\u201d doesn\u2019t necessarily mean the cabinet, although it could. \u201cCabinet\u201d isn\u2019t a constitutional term<\/a>.<\/p>\n

It\u2019s up to the president who sits in his Cabinet, or, for that matter, whether the Cabinet sits at all. Not everyone in the Trump Cabinet is a principal officer of an executive department: the U.N. ambassador and White House chief of staff, for example<\/a>. And many people who head federal agencies, and who therefore might be treated as \u201cprincipal officers of executive departments,\u201d aren\u2019t in the Cabinet \u2013 like the secretary of the Navy.<\/p>\n

It\u2019s hard to determine whether there\u2019s a majority of principal officers on board if it\u2019s not clear who gets counted for this purpose. Besides, the president could change the numbers by firing principal officers, whoever they might be, if he learns that a revolt is brewing.<\/p>\n

Congress unlikely to act<\/h2>\n

The amendment does permit Congress<\/a> to provide for an alternative body that can, with the agreement of the vice president, make an initial determination of presidential incapacity.<\/p>\n

It would be nice if Congress had done this at some point in the past 50-some years, to provide more certainty about what should happen when a president is incapacitated. But I believe Congress is unlikely to act under the 25th Amendment until political tensions have eased \u2013 whenever that might be \u2013 and a different president is in office.<\/p>\n

In any event, even if there were no computational difficulties, and even if the vice president were to agree that the president is incapacitated, the amendment doesn\u2019t provide for actually removing the president from office.<\/p>\n

Instead, the president remains president; the vice president only becomes \u201cacting president.\u201d<\/a> In such circumstances, the president would have little or no formal power, of course. But it\u2019s unlikely his Twitter account would be shut down.<\/p>\n

The president doesn\u2019t go away<\/h2>\n

Furthermore, a deposed president can return to power.<\/p>\n

Under the amendment, once the president declares \u201cthat no inability exists,\u201d he resumes presidential duties \u2014 unless the acting president and a majority of principal officers \u2013 that phrase again! \u2013 disagree and Congress, by a two-thirds vote of both houses, also disagrees.<\/p>\n

Given those stringent requirements, a president is likely to get power back quickly if he wants it \u2013 unless his incapacity is beyond dispute (as was the case with Woodrow Wilson, in pre-25th Amendment days<\/a>).<\/p>\n

Those who want President Trump out of office should forget about the 25th Amendment; it won\u2019t work as they hope or believe.<\/p>\n

After publication of the Mueller report<\/a>, much of the discussion about removing Trump has shifted to the possibility<\/a> of impeachment<\/a>.<\/p>\n

But, with Republican control of the Senate, that process is unlikely to lead to a conviction<\/a>.<\/p>\n

If removal of the president is the goal, those who want it will probably need to try the old-fashioned method: the ballot box.\"The<\/p>\n

Erik M. Jensen<\/a>, Coleman P. Burke Professor Emeritus of Law, Case Western Reserve University<\/a><\/em><\/p>\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Erik M. Jensen, Case Western Reserve University Here\u2019s some advice for frustrated impeachment advocates who think there might be other ways to force Donald Trump out of office: The 25th Amendment won\u2019t help you. But that hasn\u2019t stopped people from trying. Andrew McCabe, former deputy director and acting director of the FBI, gave the Constitution\u2019s […]<\/p>\n","protected":false},"author":44,"featured_media":16744,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[6478,473,5177,479,672,6479],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/16748"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=16748"}],"version-history":[{"count":2,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/16748\/revisions"}],"predecessor-version":[{"id":16751,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/16748\/revisions\/16751"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/16744"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=16748"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=16748"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=16748"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}