25th Amendment Doesn’t Apply?

Why the 25th Amendment Doesn’t Apply to Trump—No Matter What He Tweets

By JOSHUA ZEITZ

The 25th Amendment is back on the table.

D.C. pundits are contemplating it. Cable news shows are talking about it. And in a recent television interview, Michael Wolff—whose book, Fire and Fury: Inside the Trump White House, has much of the free world agonizing over the possibility that President Donald Trump is mentally unfit to be chief executive—claimed the amendment, by which the vice president and a majority of the Cabinet may declare a president “unable to discharge the powers and duties of his office” and appoint the vice president in his stead, “is a concept that is alive every day in the White House.”

But is the 25th Amendment really in play here—and, what’s more, should it be?

If original intent were the sole standard, the answer would probably be no.

Forged in the shadow of John Kennedy’s assassination, amid heightened Cold War tensions, the 25th Amendment was designed to address serious lapses in the Constitution’s provisions for presidential succession. Specifically, it was designed to protect the government from random occurrences like sudden illness or a failed assassination attempt.

Its framers might have agreed that it could be invoked to remove a president who suffered mental illness that led him to lapse into a state of delusion or unreason. But not a president who already demonstrated those traits when the people, in their wisdom, elected him to office. It didn’t occur to Congress that Americans might need an amendment to protect themselves from their own poor judgment.

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The Constitution was originally silent on the details of presidential succession, providing that only upon the death or incapacitation of the incumbent, the vice president would assume the “Powers and Duties” of the president. What that actually meant was unclear.

When William Henry Harrison died barely a month into his term in 1841, it wasn’t obvious whether his successor, John Tyler, was in fact the president, or still the vice president but enjoying presidential powers. Tyler was at his family home in Williamsburg, Virginia, when a State Department official knocked on his door to deliver the news of Harrison’s passing. He departed for Washington post haste and deliberately arranged to take the oath of office since, according to the judge who swore him in, “doubts may arise.” Tyler was determined to beat back suggestions by Congressman (and former president) John Quincy Adams that he was no more than “acting president.” The new chief executive insisted on being paid a presidential salary—the vice president’s stipend was a fraction of that amount—and bristled when letters arrived at the White House, addressed to the “Vice-President-Acting-President.” But the precedent stuck. When Zachary Taylor and Abraham Lincoln died in office, it was widely assumed that their successors became president immediately.

More problematic was James Garfield’s assassination in July 1881. The president was mortally wounded but clung to life—first in Washington, D.C., and later in the New Jersey shore town of Elberon—for 2½ months, during which time Chester Arthur, the vice president, remained in Washington but studiously avoided any appearance that he had assumed the mantle of office. When for a time Garfield appeared to rally, the vice president returned to his home in New York, leaving the White House wholly unattended. Despite the president’s steadily declining condition, Arthur refused to sign presidential orders or appointments while Garfield was still alive, fearing that they would be of dubious constitutional legitimacy whether the president survived or not. Only with Garfield’s death in September did Arthur assume the presidency. Though the government essentially ground to a halt for two months, left unanswered was exactly who had been in charge for the better part of the summer.

Congress didn’t spend much time on the question; neither did it have to when William McKinley succumbed quickly to an assassin’s bullet in 1901, and when Presidents Warren G. Harding and Franklin Roosevelt died unexpectedly in 1923 and 1945, respectively, of natural causes.

But in that time, the presidency—indeed, the entire executive branch—had grown enormously in power and importance. The United States had emerged from World War II as one of the world’s two unrivaled military and economic powers. During his eight-year presidency, Dwight Eisenhower suffered three serious medical problems that required surgery or sedation or otherwise left him incapacitated for a time: a heart attack, a stroke and an abdominal procedure. By agreement, his vice president, Richard Nixon, did not assume the powers of acting president formally but did preside over Cabinet meetings and ensure a continuity of office. “During that time,” observed the Allentown Morning Call, “confusion reigned concerning the division of authority between Nixon and presidential assistant Sherman Adams.”

After JFK’s death, it became clear that the modern executive branch required an updated succession plan. It had barely been acceptable in 1881 that for two months the country had essentially been without a president. That possibility was unthinkable in the nuclear age. What if Kennedy hadn’t died but had been incapacitated? Two years earlier, the world had come to the brink of war during the Cuban missile crisis. If Kennedy had been in a coma—or, trickier still, conscious but unable to function fully—who might have steered the country through the next crisis?

As a contemporary newspaper noted, this was hardly an “academic problem. … Three presidents have been incapacitated while in office without officially requesting that their vice presidents go to bat for them, for a total of about two years.” Perhaps the most egregious example was Woodrow Wilson, who, “felled by a stroke in September 1919, lay partially paralyzed for almost 1½ years, until his term expired in March 1921, while his wife and certain executive and legislative officers battled over the mantle of presidential authority.”

Ultimately, it was Eisenhower who suggested the remedy that Congress adopted.

In a letter dated March 1964, the former president told Birch Bayh, the chairman of the Senate Subcommittee on Constitutional Amendments, that in his “personal view,” the question of a president’s fitness to serve should “be left strictly to the two individuals involved, the President and the Vice President, subject possibly to a concurring majority opinion of the President’s Cabinet.” Ike further stipulated that a “disability could be of different kinds, one caused by physical or mental illness, or another by an absence from the seat of Government of such a character that would preclude Presidential decisions and action in a time of emergency.”

The amendment as passed—first by Congress in 1965 and then ratified by the states two years later—hewed closely to Eisenhower’s proposal. It empowers the vice president and a majority of the “principal officers of the executive departments” to declare the president unfit and to install the vice president on an acting basis. Upon the president’s assertion that he or she is fit to carry out the duties of office, the same group can acquiesce or, if they disagree, once again declare the president incapacitated; it would then fall to Congress to adjudicate the matter. By a two-thirds vote in each chamber, members can reinstall the vice president on an acting basis. (Congress has 48 hours to decide.) In theory, this process could play out ad infinitum, with the president declaring himself fit and Congress voting the opposite over and over again.

On several points, the provision is ambiguous. For one, it’s not clear who the “principal officers of the executive departments” are. It could mean Cabinet members. But several officials are accorded Cabinet “status” without leading recognized Cabinet agencies. There would surely be a court battle over this point.

More important, as an editorial in The Times of Shreveport, Louisiana, observed in 1965, “providing for the Vice President to assume the powers—but not the office—of President at times when the latter is incapacitated involves the tough question of what constitutes incapacity and the tougher one of whether the President believes himself unable to carry on his duties.” The world is full of patients who insist they are ready to go back to work—or that they can drive, live alone or manage their finances—over the protestations of doctors and loved ones. But most of those people aren’t the putative leader of the free world.

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There’s little question that the 25th Amendment provides a mechanism whereby the vice president and Cabinet can declare a president incapacitated—whether physically or mentally. But strictly speaking, the amendment’s framers seemed to anticipate that such incapacitation would come in the form of a natural or man-made event—an assassination attempt, a fall, a natural degeneration of health. They didn’t expressly foresee a future in which the American electorate would install in the White House someone already unfit to serve.

Put another way, Donald Trump has not—to the best of our knowledge—suffered a stroke or blow to the head since the 2016 election. He is who he is, and he has been like this for a very long time.

Yes, some of Wolff’s reporting comes as a surprise—like the fact that even close aides doubt Trump’s mental acuity, or that the president allegedly didn’t recognize a series of old friends at Mar-a-Lago last month. But we already knew that Trump can’t stay on point, that he’s inattentive to detail and belligerent in the extreme, that he repeats himself and that he has a troubled relationship with the truth: Long before he purported to believe that Barack Obama “tapped” his phones, he believed Obama had fabricated his birth certificate. And it’s fairly clear that he is a narcissist of the first order—a man who claims credit for things that he didn’t do, who insists he is a “genius,” and who defaults on financial and family obligations with casual disregard for nearly everyone around him.

But we knew all that.

It’s comforting to think that the 25th Amendment provides us reprieve from our own folly. But it doesn’t, or at least, it probably shouldn’t. Americans who “just couldn’t vote for Clinton,” who saw no difference between the two major parties, or who couldn’t be bothered to vote at all are stuck with him. And so are the rest of us.

Of course, there’s another mechanism to remove a president. It’s equally messy but much more clear cut. If Americans are really that determined to unseat the president, that’s the one they should be focused on.