By Kerry L. Erisman
Faculty Member, Legal Studies
The shocking protests at the United States Capitol building on January 6, 2021, caused myriad emotions from politicians, the news media and United States citizens. In all, five deaths were reported, including a Capitol police officer. Also, widespread damage was reported inside and around the Capitol building.
Almost immediately after the protests disbanded, calls to impeach President Trump or calls to invoke the “25th” began. Speaker of the House of Representatives Nancy Pelosi and Senate Minority Leader Chuck Schumer conferred with Vice President Pence and strongly encouraged him to immediately invoke the 25th Amendment to remove President Trump from office. In addition, the House Judiciary Committee sent an urgent letter to Vice President, imploring him to invoke the 25th Amendment.
What Is the 25th Amendment?
The 25th Amendment of the U.S. Constitution addresses Presidential disability and succession. There are four parts of the Amendment, but the applicable portion is Section 4.
Section 4 states, “[w]henever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”
The History of Presidential Succession
Article II of the Constitution addresses the Executive Branch of the government. Section 1 of Article 2 states that “[i]n case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President….”
This language created by the Founding Fathers was not clear, however, and confusion has ensued in later eras. There are two ways to interpret this language: Does the Vice President get sworn into office as the President, or does the Vice President assume the powers and duties of the President but remain Vice President?
Further confusion arose in 1841 when President William Henry Harrison died after barely a month in office. The Vice President, John Tyler, assumed the presidency but questions arose as to the constitutionality of this action. Confusion and uncertainty continued until the 25th Amendment was ratified into law.
The History of the 25th Amendment
In 1955, President Dwight David Eisenhower suffered a heart attack. He was troubled by the notion that presidential succession was not clear, and he directed the Attorney General to propose a constitutional amendment to clarify this uncertainty. The proposed amendment was submitted to Congress, but little action was taken at the time.
The proposed amendment was at last seriously debated after the assassination of President John F. Kennedy. The 25th Amendment was finally passed in 1965 and ratified by the States in 1967. It became law on February 23, 1967, when President Lyndon Johnson certified it.
How Does Invocation of Section 4 of the 25th Amendment Work?
The invocation of Section 4 of the 25th Amendment is considered a means of last resort or the “nuclear” option. Vice President Pence would need to confer with members of President Trump’s cabinet, and Pence and a majority of the Cabinet must concur to invoke the 25th Amendment.
According to the White House, there are 23 cabinet members, including Vice President Pence, so 11 members would have to vote with Vice President Pence, which would then constitute a majority (12 out of 23 members). If this situation occurs, President Trump could then object to the invocation by transmitting a letter to Congress. Vice President Pence and the Cabinet members would then have up to four days to dispute the President’s objection.
Finally, Congress would then vote to uphold the invocation. The vote requires two-thirds of both the House of Representatives and the Senate to vote to remove the President, so 290 members of the House and 67 senators would be required to uphold the invocation. If President Trump did not object, Vice President Pence would immediately become the Acting President.
Has the 25th Amendment Ever Been Used to Remove a President?
No president has ever been removed from office per Section 4 of the 25th Amendment. Its invocation was discussed by aides late into President Ronald Reagan’s second term after President Reagan was observed to be inattentive. The discussion did not progress and was dropped by the aides. Five years after President Reagan left office, he was diagnosed with Alzheimer’s disease.
Will the 25th Amendment Be Used to Remove President Trump?
It is doubtful that the 25th Amendment will be invoked to remove President Trump from office. Vice President Pence does not appear inclined to use this extraordinary measure.
This reluctance to involve the 25th Amendment may be partly due to the fact that President-elect Biden will be sworn in as President on January 20, 2021, less than two weeks from now. If President Trump had a longer period of time to remain in office, the debate may be more thoroughly considered. The use of the Amendment will, no doubt, continue to be debated for the rest of President Trump’s term in office and beyond.