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A ’25th Amendment Solution’ Is the Wrong Thing to Do

Jonathan Bernstein explains [1] why a “25th Amendment solution” [2] for Trump is the wrong thing to do:

The main reason not to use it is that the real chief complaint against Donald Trump is that he threatens U.S. democracy not (chiefly) by breaking laws, but by undermining the norms which are just as important to democratic governance as the laws and constitutional provisions. And therefore efforts to remove him should be especially careful to abide by those norms [bold mine-DL]. The 25th amendment is for use in Wilson-like cases where the president is really, truly incapacitated. While mental illness could qualify, the many armchair diagnoses we’ve seen of Trump simply do not clear the constitutional bar.

Invoking the 25th Amendment in this case wouldn’t just do violence to norms, but would make a mockery of the plain meaning of the language of the Constitution. Trump has demonstrated remarkable incompetence, but he is not so physically or mentally disabled that he can’t discharge the duties of his office. He may discharge those duties badly, but that is an entirely different question and one that the amendment was never intended to address. Going that route would also require more support in the House than an impeachment vote would, so it would be even less likely to “work” in removing Trump. It would be an illegitimate use of this part of the Constitution, and most members of Congress wouldn’t support it anyway.

If there is a need to remove a sitting president, impeachment by the House and conviction by the Senate are the most appropriate means available. If Congress can’t or won’t use those means, the only other acceptable alternative is to persuade the president to resign of his own volition. Under present circumstances, the latter method might be the most likely to succeed. The temptation to abuse or skirt constitutional rules to remove a bad president is always present in any democratic country, but it is something to be resisted. If we start giving in to that temptation, we really will end up with a banana republic. The damage to our constitutional system will be far greater as a result than anything that one bad president can do in a single term.

21 Comments (Open | Close)

21 Comments To "A ’25th Amendment Solution’ Is the Wrong Thing to Do"

#1 Comment By rayray On May 17, 2017 @ 1:03 pm

Agreed. Impeachment by democracy is the right thing to do.

The congress should show a modicum of integrity and start looking at their options; and the voters should be empowered to curtail his powers in the next congressional election by decisively taking the GOP out of the majority.

#2 Comment By CharleyCarp On May 17, 2017 @ 1:30 pm

I’m not a cabinet officer, but if I was, I’d have no problem at all agreeing that this man is unable to exercise the responsibilities of his office.

I cannot imagine what the President’s reaction would be to a clear sign on the part of the Speaker that articles of impeachment were gong to pass the House, but it’s not beyond the realm of possibility that whatever it is would convince you of his unfitness. That is, a 25th amendment removal pending impeachment may end up better than either standing alone.

It’s not going to happen until Sessions is all the way on board, as well as Ryan and McConnell. We’re quite a ways out from that, but who knows what the next 3-6 months will bring . . .

#3 Comment By SF Bay On May 17, 2017 @ 1:47 pm

The President just used the US Coast Guard Academy graduation speech to whine about how badly he is being treated. True, this isn’t 25th amendment or impeachment worthy, but my God, I am so tired of this man. Doesn’t this count for something?

Seriously, based upon the current direction of things, impeachment looks to be the likely route for Trump’s removal from office. The next few months will be enlightening.

#4 Comment By One Man On May 17, 2017 @ 1:51 pm

He’s about to be charged with obstructing justice in the Flynn investigation. There’s no need for the 25th Amendment at this point.

#5 Comment By shecky On May 17, 2017 @ 2:29 pm

Plain ole’ impeachment would be a normal response, I agree.

Though it seems violence has been done to norms on a near daily basis, since this last election cycle, so what’s a 25th Amendment really add to the mixture? We live in an America that elected a “what the heck, why not?” candidate, the same cavalier attitude could also apply to any novel procedure at this point.

#6 Comment By R.S. Rogers On May 17, 2017 @ 2:32 pm

Sadly, the idea is about what I expect from Douthat lately. It’s wrong in principle; removing a merely unfit or incompetent President is manifestly not the purpose or intent of the 25th Amendment. Fidelity to any of the several legitimately conservative ways of interpreting the Constitution would forbid using the 25th Amendment to remove Trump. And as a practical matter, it’s actually harder to remove a president under the 25th Amendment than through normal impeachment. Upholding the president’s removal by the vice president and the cabinet requires a two-thirds vote in both the House and Senate. Impeachment and removal requires only a simple majority in the House and then a two-thirds vote in the Senate. So if Congress lacks the votes to impeach and remove Trump, then by definition it also lacks the votes to uphold Trump’s removal under the 25th Amendment.

A 25th Amendment removal of Trump would be brief and would end in his restoration to office. The best-case scenario for Douthat’s proposal would be three weeks of government by Acting President Pence.

#7 Comment By EarlyBird On May 17, 2017 @ 3:02 pm

Important article.

As damaging as the Trump presidency could be, I’m actually more afraid of a soft coup that occurs simply in the name of, “because we really, really don’t like you.” Put another way, I’d prefer that idiot stay in the White House legitimately than be removed illegitimately.

#8 Comment By Melampus the Seer On May 17, 2017 @ 3:32 pm

Completely agree, sir!

And thank you for the reporting on Yemen.

#9 Comment By Egypt Steve On May 17, 2017 @ 3:47 pm

Re: “The damage to our constitutional system will be far greater as a result than anything that one bad president can do in a single term.” That’s probably true, but not certainly true. Problem is, it’s impossible to calculate that probability.

#10 Comment By Fran Macadam On May 17, 2017 @ 4:09 pm

SF Bay: “I am so tired of this man. Doesn’t this count for something?”


#11 Comment By c matt On May 17, 2017 @ 5:14 pm

The best thing would be to just wait until November 2020.

#12 Comment By EliteCommInc. On May 17, 2017 @ 6:49 pm

It’s a bit late to complain about the norms of the democratic process being violated. For me to take anyone seriously on the matter, I’d have to know where they stood on the invasions of Iraq, Afghanistan, the Patriot Act and the all that followed pursuant to that agenda.

#13 Comment By jk On May 17, 2017 @ 8:48 pm

So was Comey in the clear for keeping this memo in the event that he may be fired? What is that called again?

Just kidding, given Trump’s threats and the hostile political atmosphere in general with the omni-McCarthyism and Trump, I believe Comey is correct in releasing this.

But in the end it may be a simply a he said, she said situation if it was his own recollection of his events. I don’t see that being grounds for an impeachment nor would I want Pence in charge since he is the ultimate blank check (blank slate) for the neocons.

Neocons certainly played 4-D chess with installing Pence in there as an insurance policy, who knows how many purges of Trump, “America first” ideology has occurred since the installation of McMaster.

#14 Comment By Cassie On May 17, 2017 @ 10:47 pm

With the latest Flynn revelations – that Trump and his team knew the guy was under investigation when they hired him, AND that Flynn nixed an anti-ISIL operation which Turkey opposed after Turkey paid him half a million dollars – there might not be a President Pence, either. Pence vetted Flynn, didn’t he? So Pence has to have known all this.

So Flynn implicates Pence. The Comey firing implicates Sessions and possibly Pence. Since the fish rots from the head, everything implicates Trump.

And let’s not forget the corruption charges dogging other members of the Cabinet, which probably won’t get much play while the main attraction gets all the attention. But it’s there, just waiting for someone to decide to investigate.

There might not be anyone left standing when the smoke clears.

#15 Comment By St Louisan On May 17, 2017 @ 10:48 pm

Is it obvious that Pres Trump is actually able to discharge the duties of his office? What if his emotional/intellectual makeup is such that he is unable to discharge his oath responsibly?

The Constitution doesn’t limit removal by the 25th to illegality, and doesn’t limit incapacity to actual comatose states or severe medical afflictions. I’m genuinely uncertain whether Pres Trump is capable of discharging his oath. I’m genuinely uncertain whether he has the ability to control his passions or place the national good ahead of his personal good, both of which are required to take care that the law be faithfully executed.

Jack Goldsmith, former OLC head, wrote on the issue of whether we can believe the President’s oath, and what is means if we can’t. If indeed we cannot, I’m not sure that the 25th wouldn’t be the appropriate response.

#16 Comment By rayray On May 17, 2017 @ 11:27 pm

“…who knows how many purges of Trump, “America first” ideology has occurred since the installation of McMaster.”

There is no Trump “America first” ideology. It doesn’t exist. No ideology exists in Trump. And if recent events don’t bear this out than it’s proven that Trump was right, it doesn’t matter what he does. His audience believes what it wants to believe.

All of which was abundantly clear both before he ever ran for president and even more so during the election.

#17 Comment By Dcn. Chris On May 18, 2017 @ 5:11 pm

What, short of his delivering the dictator speech from the old Woody Allen film “Bananas” (” …all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check”), or naming Barron FBI director, would be sufficient evidence that the man is mentally unsound? ( And at this point, neither would stun me).

#18 Comment By djprowse On May 18, 2017 @ 6:05 pm

So every politician that brought us as a nation to where we are today were so much better? You people are asking to get lined up against the wall, elbow to elbow with socialist rats. I hope you’re successful in that.

#19 Comment By jk On May 18, 2017 @ 9:45 pm

I’m not trying to convolute things and I don’t care too much for Trump but did Comey commit a crime by not reporting an attempted obstruction of justice when the alleged request occurred?

#20 Comment By Dan Green On June 8, 2017 @ 7:09 pm

Pence is slated to be our next Gerald Ford. Sit in the chair but do nothing.

#21 Comment By Steve Naidamast On June 9, 2017 @ 7:21 pm

No one needs a degree in psychiatry to see that this man is seriously, mentally impaired…

Unfortunately, removing him may make things only worse under Pence…