The 25th Amendment loophole Democrats could use against Trump
It’s been a defining question of his presidency: Is Donald Trump mentally fit enough to perform the duties of his office? And if he weren’t, what remedy could there be? While never entirely going away, the discussion seemed to have quieted. But then came Sharpiegate, his surpassingly strange conflict with the deep state of the NOAA. What other explanation could there be for the president who would draw on a weather map for a press conference show-and-tell? Even Republicans and former Trump administration officials sounded the alarm. “He’s deteriorating in plain sight,” a Republican strategist in frequent contact with the White House told Business Insider. “The guy is obviously in mental decline,” Anthony Scaramucci, who briefly served as White House communications director, sounded off on CNN.
There is, of course, a constitutional remedy for this problem: the much-invoked 25th Amendment. Before the New York Times reported that former Deputy Attorney General Rod Rosenstein had discussed recruiting members of Trump’s cabinet to remove Trump from office, the amendment was largely obscure. (Though, fans of The West Wing may have recalled Martin Sheen’s character invoking it in the episode wherein his daughter, played by a young Elisabeth Moss, gets kidnapped.) The notion that Vice President Mike Pence and a majority of Trump’s cabinet might band together and oust the maniac in the Oval Office has since been written off as a liberal wet dream.
But there is actually a lesser-known provision in the 25th Amendment, one that doesn’t require as much complicity from cabinet members and others likely in the Trump tank, which some Democrats on Capitol Hill say could provide a solution to Trump’s escalating erraticism. Specifically, section four of the amendment, which stipulates that not only could the vice president and a majority of the cabinet take such action, but the vice president and a majority of “such other body as Congress may by law provide” can determine whether a president is “unable to discharge the powers and duties of his office” due to physical or mental incapacity. In fact, in April 2017, during the 115th session of Congress, Maryland Democrat Jamie Raskin introduced a bill to create just such a body—formally titled the “Oversight Commission on Presidential Capacity”—comprised of former elected officials and medical professionals, selected on a bicameral and bipartisan basis, who, with the support of the vice president, could deem Trump unfit.
No such body has ever been set up under the 25th Amendment, but Raskin stressed to me that it is imperative from a separation of powers standpoint. “If you ask yourself why either the cabinet could act or a body set up by Congress, it has to be about the separation of powers. The cabinet reports directly to the president and this president not only closely controls all of the conduct of the cabinet secretaries,” he told me, noting President Trump’s proclivity for keeping top officials serving in an acting capacity, is cause for concern regarding the 25th Amendment. Raskin’s bill garnered 67 cosponsors, but he has yet to reintroduce the bill during the current Congress—though he said he fully intends to do so. “It is still very much on my mind and the time will come. I don’t think of it as an alternative remedy for impeachment. They address different problems. The core of the concern of impeachment is high crimes and misdemeanors committed by the president. The core problem addressed by the 25th Amendment is the mental or physical incapacity of the president,” Raskin told me.
And while Trump is not mentioned in Raskin’s legislation, it is hard to separate its potential ramifications from the president. “The discussion of the 25th Amendment and the president’s erratic behavior has gone up dramatically. You know, the timing of reintroducing my legislation is complex, there are obviously a lot of other things going on, but the moment will be right and I will reintroduce it,” he said. “The president’s behavior has exposed a real problem under the Constitution and we need to act under the 25th Amendment as Congress to fulfill our duty as contemplated by the framers of the 25th Amendment.”
The Maryland congressman envisions former executive branch officials—such as ex-presidents or former cabinet secretaries—making up half the body, while the other half would be comprised of medical professionals, like physicians and psychiatrists or psychologists. The members of the commission would be appointed by leaders of both parties and chambers in Congress. “If you look at my legislation, it is bipartisan and it is bicameral,” Raskin explained. “And of course, nothing happens without the vice president anyway, so the executive branch is still going to exert dominant power on it but this would at least allow this body to take initiative and act, even if the vice president isn’t doing anything.”
But with the need for buy-in from Vice President Pence even under the Raskin amendment, it is hard to see how the bill would move Democrats any closer to ousting Trump. “Raskin’s proposal is clever in that it doesn’t require a majority of the cabinet to sign on. But the Constitution still requires the vice president to sign on, and I just don’t see any signs that Pence would ever be willing to do that,” Josh Chafetz, a constitutional law professor at Cornell University, told me. “Even if he did, you need [a two thirds] vote in both houses of Congress once Trump challenges the disability determination, and I don’t see any indication that that many Republicans would sign on.” And despite Raskin’s assertion that it is not an alternative to impeachment, Trump allies will certainly argue that is the case, all but assuring that the bill will be dead on arrival in the Republican-controlled Senate. “The 25th Amendment is well-designed for what it was intended for: dealing with physical disability that incapacitates a president but doesn’t kill him. But it doesn’t really work as an alternative to impeachment for an incompetent or venal president,” Chafetz told me.
But as the economy cools and the presidential race heats up, the expectation is that Trump will become more unhinged. “2020 is going to be worse on many fronts,” Bandy X. Lee, a forensic psychiatrist and an expert on societal violence at Yale School of Medicine, told me. “We will be paying a lot of attention to other candidates rather than him. Even negative attention is better than no attention because he has shown no ability to hold himself together on his own. He needs the external attention to even have a sense of self.”
Source: Abigail Tracy, vanityfair.com/news/2019/09/25th-amendment-donald-trump