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In recent years, there has been a lot of talk about the 25th amendment during the Trump presidency. Some Democrats called for using an obscure provision of the amendment to essentially remove President Trump from office, similar calls were made by Republicans during the Biden administration. The 25th amendment option was raised to highlight the age and alleged incapacity of President Biden,
very recently, former President Trump, called for changing the 25th amendment to prevent a rogue Vice President from essentially initiating a coup against the president. While this not very well fleshed out proposal is not practical as it would require a constitutional amendment, it does, however, point to the issue that political partisans have started talking about the 25th amendment as a political weapon to threaten to remove a president of the opposing party.
There are multiple ironies of this politicization of the 25th amendment, first in talking about the removal of a president, there is already in place a provision that clearly addresses this issue impeachment. Not only is impeachment and removal by a Senate trial the more appropriate forum for removing a president. It turns out that impeachment and removal also requires fewer votes. It is easier to do than using complex provisions of the 25th amendment.
The impeachment of a president requires a majority vote in the House of Representatives, followed by a trial in the Senate, where a two thirds vote is required to remove the president from office
using the section four provision of the 25th amendment, is much more difficult. It starts with a declaration by the Vice President and a majority of the cabinet that the President is incapacitated. If the president disputes this finding of incapacity, then the President and majority of the cabinet has to vote a second time to indicate his disability, and then Congress is called in to decide if two thirds of both the House and Senate find the president to be incapacitated. Then the President ceases to act as president, and the vice president takes his place
impeachment and removal requires a majority vote of the house and a two thirds vote of the Senate. The section four provision of the 25th amendment requires two votes of the Vice President and majority of the cabinet, followed by two thirds votes of the House and the Senate. If the goal is removal of a president, impeachment and removal is by far the easier route.
In addition, impeachment is more suited to these kinds of political disputes. While the standard of high crimes and misdemeanors is in the Constitution, the process is generally thought to be broad enough to encompass political crimes or even inability to carry out the duties of the office and impeachment and removal have defined procedures where the public can watch and hear the arguments for and against removal.
A second irony of the politicization of the 25th amendment is that it focuses on one obscure provision of the amendment and ignores the very important functions that the 25th amendment performs.
The most important feature of the 25th amendment is that it provides fulfilling vacancies in the vice presidency. Prior to 1967 when the Amendment was ratified, one Vice President had resigned, seven vice presidents had died, and eight presidents had died and the Vice President had become president, leaving the vice presidency vacant.
In 16 presidential terms, the vice presidency became vacant with no way to fill the vice presidency until the next presidential election.
The 25th amendment allows a president to nominate a vice president to be confirmed by a majority vote of the House and Senate. And shortly after the ratification of the 25th amendment, we use the provision twice, when Vice President Spiro Agnew resigned, President Nixon nominated and the Congress confirmed Gerald Ford to be vice president. Then upon President Nixon’s resignation, President Ford nominated, and Congress confirmed Nelson Rockefeller to be vice president.
Second, the 25th amendment allows for smooth transitions of power to the Vice President when the President knows that he or she will be temporarily disabled, for example, for scheduled surgery in 1985 for example, President Reagan transferred the presidency to Vice President George HW Bush while he was undergoing colon surgery, and eight hours later, he reclaimed the presidency.
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Third, the 25th amendment allows for a transfer of power to the vice president if the President is unexpectedly incapacitated, a provision that has never been invoked. And fourth, section four contemplates the removal of a mentally incapacitated president.
All in all, we would be better to look at impeachment and removal when we have deep constitutional debates about the President’s fitness for Office. And we should discard the recent politicization of the 25th amendment, which masks the important functions of the 25th amendment, including the filling of vacancies in the vice presidency and dealing with medical issues of precedence, I thought
the second one was much better. Actually.
Can.
