Stop Perpetuating Myths about the 25th Amendment

President Trump addresses a Cabinet meeting in August 2018. (Kevin Lamarque/Reuters)
It’s practically subject to a veto by the president.

The Australian political system operates on principles distinct from the ones animating our own. The head of their executive branch, the prime minister, theoretically occupies his office without any personal mandate to govern. It is his party that was elected, which he presently happens to run.

The prime minister is leader of whatever party wins the most seats in the Australian legislature, but the party is free to swap leaders as it sees fit. If the ruling-party caucus votes by simple majority to depose one party head and appoint another, Australia gets a new prime minister. For reasons I won’t claim to understand, Australian caucuses have become increasingly promiscuous in exercising this power to depose (or trigger “a leadership spill,” to put it in Australian). Since 2010, the Australian prime ministership has four times swapped hands through spill rather than election.

Many Americans labor under the assumption that U.S. politics operates similarly. This is the only conceivable explanation for the growing fetishization of the 25th Amendment, a previously obscure clause of the Constitution that now serves as a gothic deus ex machina for President Trump’s critics and supporters alike.

In the current imagination, the 25th Amendment allows an Australian-style leadership spill to occur whenever a simple majority of the president’s 16-member cabinet deems it necessary.

Last week, the New York Times reported that deputy attorney general Rod Rosenstein had “discussed recruiting cabinet members to invoke the 25th Amendment.” In doing so, the paper corroborated its earlier op-ed by a “senior official in the Trump administration” who claimed “there were early whispers within the cabinet” of invoking the 25th. Last year, Vanity Fair spoke of Steve Bannon doing “a spitball analysis of the Cabinet to see which members would remain loyal to Trump in the event the 25th Amendment were invoked,” concluding he was “not sure if Trump would survive such a vote.”

I would not have supported the 25th Amendment when it was first proposed in 1965. It injected a parliamentary logic into the American system that was not previously present, giving the executive branch a power of self-policing that should have properly remained with Congress. The amendment requires the cabinet to begin a process of removing a president who is “unable to discharge the powers and duties of his office,” a wording choice that hints at a president who is just broadly bad at his job, as opposed to, say, unable to speak or move or think. The text is certainly far less precise than the impeachment clause’s reference to removing a president deemed guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.”

But even conceding the 25th’s flaws, it is important to understand what it does not do. It does not make the president a passive victim of his own cabinet. Nor does it grant the cabinet some expedited power of impeachment. On the contrary, to the extent it creates a novel procedure of presidential disempowerment, it is one extraordinarily favorable to the president. For all intents and purposes, invoking the 25th is subject to presidential veto.

The 25th is one of the Constitution’s longest amendments. Those who cite it casually in the press (and, apparently, the White House) do not appear to have read more than a sentence or two.

The amendment’s Section 4 does state that if a majority of the cabinet — and, crucially, the vice president — tell Congress that the president is “unable to discharge” his powers and duties, the vice president “immediately” becomes acting president. But “acting president” is an office distinct from, and existing simultaneously with, that of the real president, who remains in office — albeit disempowered. This is significant, given the president can still exercise some agency during someone else’s “acting presidency”: namely, the authority to end the acting presidency itself.

Section 4 empowers the president to inform Congress if, in his opinion, the cabinet has erred, and “no inability exists” in regards to his fitness for office. If the cabinet doubles down, Congress “shall decide the issue” through a process biased in the president’s favor. Unless both chambers agree by “two-thirds” that the president is unfit — a higher standard than that for impeachment and removal, which requires a two-thirds conviction by the Senate but only a simple majority vote in the House — the acting president is deposed and invocation of the 25th Amendment reversed.

A strong case can be made that the 25th makes a reckless mistake in giving the president a chance to contest his removal after the fact. If the goal is to prevent a president from being stripped of power frivolously, a better system would give him an opportunity to contest his removal the moment the 25th is invoked, rather than triggering an acrimonious period (no longer than “twenty-one days” says the Constitution) in which the acting president, president, and Congress are made to feud.

Nevertheless, what should be clear is that the bar to remove a president against his will via the 25th amendment is astonishingly high. Even in an age less polarized than ours, successful imposition of the 25th would require assembling an almost impossible bipartisan coalition in which the vice president, a majority of the cabinet, the congressional majority party, and a substantial chunk of the minority party — in both chambers — all shared the same skeptical view of an incumbent president.

America’s Constitution is superior to Australia’s, and to the so-called Westminster System of the British Commonwealth more broadly, because it grants citizens greater control over their government’s executive. When an Australian votes in a general election, she has no real idea who will wind up occupying her nation’s highest office. Regardless of who is leading Parliament’s victorious party on Election Day, this person is subject to being replaced at any moment without voters’ input.

The 25th Amendment nudged America closer in this direction, but hardly to the degree that’s now constantly and casually asserted. As much as the 25th muddles some of the balance between the branches of government intended by the 1789 Constitution, it does so with exceeding caution. A president elected by the people remains tremendously difficult to remove by anyone else, and that’s worth applauding.


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