Does the 25th Amendment Apply to Trump? Quite Possibly

(Bloomberg Opinion) -- In the aftermath of President Donald Trump’s provocation of a riot at the U.S. Capitol, there is fresh discussion of the two avenues for removing a sitting president. The first is impeachment. The second is the 25th Amendment to the U.S. Constitution.

There is no question that Trump’s conduct was an impeachable “high crime and misdemeanor.” The applicability of the 25th Amendment isn’t as obvious.

The two grounds for removal are fundamentally different. Impeachment is for egregious abuse of the powers of the office. The 25th Amendment is concerned with some kind of impairment that renders a president unable to do his job.

For present purposes, its key provision is Section 4:

Whenever 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.

After this declaration is transmitted, the president’s only recourse is to submit his own declaration, saying that he is indeed able to do his job. At that point, the vice president and the majority of the principal officers of the executive departments (essentially the cabinet) can disagree. If so, Congress gets to decide the question.

The 25th Amendment is clear about the process. It is less clear about the legal standard. What does it mean to say that a president “is unable to discharge the powers and duties of his office”? Is Trump unable to do that?

The short answer is that horrific and even impeachable acts do not necessarily justify removal under the 25th Amendment, whose focus is on physical or mental disability. For any president, including Trump, the question is one of fact: Could the vice president and the cabinet reasonably find that the president is so seriously impaired  that he can no longer perform his constitutional role?

For most of Trump’s presidency, the answer has been clearly no — whatever you think about his performance. Are things different today?

The background of the 25th Amendment offers helpful guidance. During the mid-1960s congressional debates over the provision, which was ratified in 1967, many members focused their attention on three cases. These were the prolonged deathbed experience of President James Garfield in 1881, the post-stroke presidency of Woodrow Wilson starting in 1919 and several cases in which President Dwight Eisenhower, suffering from heart problems, agreed to transfer power to Vice President Richard Nixon.

The first two cases played the largest role in the legislative debates, and the discussion demonstrated a clear congressional focus on diminished cognitive capacity. Garfield and Wilson faced terrible physical afflictions, but legislators were especially interested in adverse effects on cognitive ability. Senator Birch Bayh of Indiana — a sponsor of the Senate resolution that eventually became the 25th Amendment — noted that “the ability to perform the job would be the prime evidence that would determine whether a president were disabled or not.”

Importantly, Bayh was focusing on cognitive incapacity. Supporters of an early version of the 25th Amendment emphasized the same thing, noting a possible advisory role for psychiatrists.

Given the text, it is clear that the vice president and cabinet cannot remove a president because they abhor his decisions, because he has a terrible temper, because he is in a foul mood, because he is going to war (or not going to war), or because he is impossible to deal with. In ordinary language, they might say and believe that he is “unable” to perform his constitutional functions, but that is not what the amendment is about.

Still, we could imagine cases of acute depression, crippling anxiety, distress, or otherwise serious emotional breakdown, which would also prove debilitating, even if the president is not literally unable to make decisions. The debilitation could take the form of highly erratic behavior, which might show that the president is “unable” to do his job within the meaning of the 25th Amendment.

Turn to Trump in this light. In the past weeks, his behavior has been worse than highly erratic. He has repeatedly lied about facts related to the election and in some ways has seemed to lose touch with reality. He has failed to manage the Covid-19 crisis and has been obsessed with maintaining power. Is he suffering from some impairment, even if a temporary one, that is making him unable to do his job?

That’s the constitutional question. It’s largely one of fact, not easily resolved by outsiders. The vice president and the cabinet have the authority to answer it. On the basis of what happened yesterday, it’s no longer clear that the answer is “no.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”