Note: This Op-Ed was published on NJ.com on Saturday, Jan. 9, 2021.
President Trump urged supporters Wednesday to march on the Capitol and warned his supporters could “never take back our country with weakness.” After the march mutated into a riot at the Capitol Building, several Democratic members of the House of Representatives called for the Twenty-Fifth Amendment to be invoked to remove the president from power.
No matter what one thinks of Trump’s actions or statements in urging the marchers-cum-rioters, the Twenty-Fifth Amendment is not a tool that can be used in this instance to remove the president from office.
The amendment’s origins date back to the presidency of Woodrow Wilson. Exhausted from a multistate tour to promote Senate ratification of the Versailles Treaty in 1919, Wilson suffered a severe stroke. He was partially paralyzed and almost blinded. For several weeks thereafter, he was seen only by his wife and physician.
The public was ignorant of the full extent of Wilson’s condition for several months, during which time his wife and several close aides were gatekeepers who shielded Wilson from scrutiny and shepherded (and perhaps even made) policy decisions. Since there was no clear constitutional authority for replacing an incapacitated executive, Vice President Thomas Marshall was reluctant to assert any claim on the office absent a joint resolution from Congress or an official declaration from Wilson himself. Not only was Wilson literally partly paralyzed, but so too was the presidency.
Wilson’s condition and the predicament into which it put the presidency was one of the historical examples congressional legislators had in mind when they proposed the Twenty-Fifth Amendment. Ratified in 1967 and spurred on by the assassination of President Kennedy in 1963, the amendment allows for the voluntary relinquishment of power by the president or the involuntary removal from power by the vice president and a majority of the cabinet, or by a specially designated body created by Congress.
The amendment requires that the president be “unable to discharge the power and duties of his office.” As the Wilson and Kennedy examples demonstrate, the kind of problem solved by the amendment is related to a disability or the incapacity of the president. President Trump may be unwilling to make good decisions, but he is not incapable of making them in the sense that the “unable” language anticipates.
The Twenty-Fifth Amendment also allows only for the removal from power, but not from office. Under its terms, the president remains the president and has the power to issue a declaration that “no inability exists” and can resume his ability to govern. The amendment provides a procedure for the vice president and cabinet or the specially-created congressional body to continue to object to the president exercising the powers of his office, and ultimately if Congress can muster a two-thirds majority in both houses, the removal from power can continue. At a minimum, the procedures and plain language of the amendment demonstrate that this is simply not the proper constitutional tool for this president’s opponents.
If Congress dislikes Trump’s behavior, impeachment is the most appropriate route. As we were reminded during the debate surrounding Trump’s first impeachment in late 2019, impeachment does not require a criminal offense under statutory law. It involves a “political offense,” which Trump has arguably committed in urging his supporters to march on Congress. There is, however, likely too little time remaining in his administration — the inauguration of President-elect Biden occurs on Jan. 20 — for a trial in the Senate. Yet, the House can note its strong disapproval by voting to impeach, leaving President Trump as the only president to be twice impeached.
Constitutional powers like those allowed under the Twenty-Fifth Amendment should be exercised only when clearly appropriate. In this case, President Trump is not unable to be president – in fact, the premise of the anger against him is that he knew full well what he was doing and made bad or immoral choices. The only viable constitutional tool left is impeachment, and the clock is running out.
Professor Drake echoed a similar opinion in a recent interview with NorthJersey.com published on Thursday, January 7, 2021.