Invoke the 25th Amendment?

There has been some talk about using the 25th Amendment to the Constitution of the United States to remove President Trump from office. The Amendment enables the vice president to do this with support from a majority of “principal officers of the executive department.”

This is not going to happen, but I would not be unhappy if it did, and my opinion has little to do with President Trump. It would set a precedent making it easier to invoke the 25th Amendment in the future, which would reduce the discretionary power of the president.

My view has little to do with President Trump, who has less than ten days in office, and everything to do with curbing the expanding powers embodied in the presidency. As originally designed in the Constitution, the president is the head of one of three branches of government that were designed to check and balance each other. Throughout the twentieth century and into the twenty-first, the powers of the presidency have been expanded, lessening those checks and balances.

The Amendment says the president can be removed from office if the vice-president and “principal officers” determine that “the President is unable to discharge the powers and duties of his office,” and this website says the authors of the Amendment deliberately left vague what would constitute being unable to discharge the powers of the office.

President Trump has provided an excellent opening for applying the 25th Amendment, in that he is not physically or mentally incapacitated, but has taken some questionable actions since the election, such as pressuring Vice President Pence to refuse to certify the electoral votes and inciting a mob to invade the Capitol. Invoking the 25th Amendment now would set the precedent that it can be used in cases where a majority of the president’s cabinet view the president’s actions as inappropriate.

If those actions were taken as evidence that the president was unable to discharge the powers of the office, a precedent would be set that inability, in this context, can mean more than just physical or mental incapacitation. Keep in mind that the people making that determination would be the president’s political allies: the vice president and cabinet officers handpicked by the president. This would be a valuable check on the powers of the presidency, because the check would come from the president’s own inner circle.

Along similar lines, some people have been critical of the impeachments of Presidents Clinton and Trump, claiming they were frivolous and politically motivated. But here again, the precedents set send a message that Congress may use its powers to check and balance the powers of the presidency.

The mechanisms embodied in the 25th Amendment, and the impeachment powers of Congress, are reminders that the president has limited powers that can be constitutionally revoked.

In today’s political environment, there is an additional element of intrigue surrounding the 25th Amendment. Democrats are more likely to support removing President Trump from office, while Republicans are less likely (despite Trump losing political allies at what appears to be a fairly rapid clip). Down the road, it has been suggested that applying the 25th Amendment now to President Trump would make it easier for Democrats to apply it later to President Biden, which would elevate Kamala Harris to the presidency–something the more left-leaning elements of the Democratic party would like to see.

Randall G. Holcombe is a Senior Fellow at the Independent Institute, the DeVoe Moore Professor of Economics at Florida State University, and author of the Independent Institute book Liberty in Peril: Democracy and Power in American History.
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