We should be grateful that our republic is, in a few important ways, a democracy of the dead as well as of the living.
Earlier this week, journalist Jesse Singal joined the growing chorus of voices on the left pointing to President Trump’s frankly unhinged tweets and saying this is what the 25th Amendment to the Constitution is for:
Not to be that guy and I know it's not going to happen, but what is the 25th for if not this? Our president is posting fake videos of a fake bombing of a country we're at real war with? Outta words and have been for awhile. https://t.co/KtsVfNLfIN
— Jesse Singal (@jessesingal) August 31, 2026
That chorus has included lots of prominent voices this summer, among them Democratic members of Congress and the governor of California, or at least his press office.
They certainly aren’t wrong about the tweets. Trump’s online rants are glimpses of a deeply deformed psyche, and the fact that its bearer is the president of the United States is obviously both embarrassing and terrifying.
And yet, even though they’re right about the president’s character and behavior, the chorus of situational constitutionalists calling for Trump’s removal are nonetheless barking up the wrong tree now. They are wrong about the 25th Amendment, and particularly wrong to claim that the situation we are in is exactly what the amendment is for. It most certainly is not intended for such circumstances, and it in fact could not be used in them, whatever you think of Donald Trump.
Ratified in 1967, the 25th Amendment was intended to clarify the process of presidential succession in an emergency. The original Constitution says that “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President.” Gouverneur Morris, who wrote those words at the constitutional convention, was generally a great draftsman of clear and concrete text, but in this case he left an awful lot of vagueness. It wasn’t even clear if “the same” meant that the vice president would actually become president if the president died, or would only exercise the powers and duties of the office until the next election. But it was particularly unclear what “inability to discharge” those powers and duties was supposed to mean, and how such a situation would be determined.
After several presidential health scares in the Eisenhower years and the shock of the Kennedy assassination, Congress decided to address this problem with a constitutional amendment that would establish some clear processes. Especially during the Cold War, when existential decisions might need to be made on short notice, it was crucial that it always be clear who is in charge of the executive branch.
The 25th Amendment has four sections. The first just makes it perfectly clear that if the president dies, the vice president actually becomes president. This had been the practice since the first time a president died in office in 1841, but it had never actually been clearly established. The second section creates a way for the president to replace a vice president who resigns or dies, which had also not been established in the original Constitution.
The third section allows a president to temporarily empower the vice president to serve as “Acting President” when the president is temporarily unable to discharge the office, and then allows the president to take those powers back when he is able to again. This has been used by presidents undergoing medical procedures, for example.
But what if the president becomes unable to exercise his powers without prior warning? In other words, what if the president can’t function as the chief executive, but is still alive? Section 4 of the amendment establishes a procedure for the vice president and cabinet (or another body assigned by Congress) to make that determination and set up the vice president as acting president while the president remains unable to discharge the office. But the members of Congress drafting this text wanted to be very careful to avoid the possibility of creating the means for a cabinet coup that would overthrow the elected president. So they made sure that if the president was capable of objecting to a move to disempower him, he would essentially always prevail.
Here is the text of section 4:
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.
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.
First and foremost, this process offers a way to give the vice president the powers of the presidency (though not the office itself) if the president is unexpectedly incapacitated, until he is able to return. It does then also establish a process by which the vice president and the cabinet can contest a president’s claim that he is able to return to power, but that contestation then ultimately has to be resolved by Congress, and keeping the vice president in power as acting president over the president’s objection would require two-thirds votes in both houses — or in other words, a higher threshold in Congress than impeachment and removal, which requires a simple majority in the House and two-thirds only in the Senate.
So simply put, if there is not a sufficient majority in Congress to impeach and remove the president, then he also cannot be removed using the 25th Amendment. A president who is capable of objecting to his being sidelined by the 25th Amendment can return to power. And whatever might be said about President Trump’s assorted deficiencies, he is certainly more than capable of making such an objection.
This means that the only process available for removing a president in our circumstances is the process of impeachment. As with so much else in our constitutional system now, if there is a job going undone here then it is Congress’s job.
And if there were a large enough congressional majority intent on using the impeachment and removal process now, it certainly could be used. The legalism that has overtaken our constitutionalism has persuaded many Americans that impeachment can only happen when the president violates the law, and of course we have never gone to the trouble of enacting a statute that prohibits the president from behaving like a raging lunatic — or being one. But impeachment is a political act, and Congress could do it for any reason persuasive to a number of senators sufficient to remove the president.
Of course, there isn’t a sufficient number now, and there almost certainly isn’t going to be. In fact, there never has been a Senate supermajority willing to remove any president. The impeachment power has been used much less frequently than the authors of the Constitution expected. Richard Nixon resigned when removal seemed inevitable, so maybe we can point to one instance of the impeachment power serving its purpose indirectly. But that’s it. In its entire history, Congress has never removed any executive official from office, let alone a president.
Anything is possible in the next two years, as we have surely learned by now. But given what he has already done over the past decade, it’s not easy to imagine what Trump would do that might move the Congress to remove him now.
That makes the call to use the 25th Amendment against him even more peculiar. If Congress doesn’t have the will to remove him, then surely a collection of people appointed by the president and led by his chosen deputy is not going to do that, even if the structure of action created by the amendment allowed for it, which it does not.
And so those yearning for a post-Trump era are left instead to resort to another constitutional amendment — one passed with something much more like our situation in mind and steeped in a realism about the danger of executive power unmatched by any other element of the Constitution. The 22nd Amendment, ratified in the wake of Franklin Roosevelt’s shattering of the norm of two-term presidencies, restored that norm as a formal constitutional constraint. It expresses the recognition that sometimes presidents might persuade the voting public to do foolish things, and that it is vital that it be made easier to wait out such presidents and set a clear limit on their time in office.
It was, like any constitutional amendment must be, advanced by large supermajorities in Congress. And those included many members of Franklin Roosevelt’s own party who, without disclaiming their support for him, understood in retrospect that some of what had happened in the years he was in office should not happen again. They were wiser citizens in the future tense than they were able to be in the present tense, and the nature of our system allowed them to apply the lesson they had learned for the benefit of future generations like ourselves.
Trump has talked about ignoring the 22nd Amendment, and we should put nothing past him. But it does seem likely that the amendment will help rid us of him soon, and leave us once again thanking a prior generation for creating an institutional protection against our weaknesses.
But as we thank those prior generations, we should also follow their example. Without expecting anyone to openly disclaim or even privately regret their part in empowering Donald Trump, we should look for potentially bipartisan ways to apply some of the lessons we are learning now, and to build some protections against presidential excess in the future tense that we have lacked in the present tense. Some of those might be constitutional (like constraints on the open-ended pardon power that we have recently seen presidents of both parties grossly abuse) and others might be statutory, or might involve some ways to strengthen and revitalize Congress.
We should be grateful that our republic is, in a few important ways, a democracy of the dead as well as of the living. Prior generations have built crucial constitutional architecture to help us counteract civic deficiencies they could perceive in themselves. And we should look for ways to act in a similar spirit on behalf of future generations who surely will, on some occasions, be as deficient as we collectively have been on this one.