Actually, Invoking the 25th Amendment Makes a Lot of Sense

Actually, Invoking the 25th Amendment Makes a Lot of Sense

Actually, Invoking the 25th Amendment Makes a Lot of Sense

Trump’s anonymous lieutenant was wrong to reject a constitutional remedy for an erratic and amoral presidency.


Agreeing with Sarah Huckabee Sanders is not something that responsible people get into the habit of doing. But the president’s press secretary was more-or-less right to suggest that “this pathetic, reckless, and selfish op-ed” written by an anonymous “senior official in the Trump administration” for The New York Times was not exactly a profile-in-courage statement. The op-ed writer claimed to be “part of the resistance inside the Trump administration,” yet the resistance that he described was more self-congratulatory than consequential. Indeed, the writer’s enthusiasm for the administration’s right-wing agenda suggests that the trouble this senior official has with Trump is more a matter of style than substance.

The Trump lieutenant actually admitted that “It may be cold comfort in this chaotic era, but Americans should know that there are adults in the room.” Well, yes, yes it is cold comfort to think that the republic is being preserved by a “steady state” cabal that thinks “the president’s instincts are good” on things like “tax cuts, deregulation, judges.”

The worst part of the Times column was a section that rejected an appropriate response to an “amoral” president who exhibits “erratic behavior,” acts in “impetuous, adversarial, petty and ineffective” ways, and displays “impulses [that] are generally…anti-democratic.”

“Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the President,” wrote the anonymous official. “But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until—one way or another—it’s over.”

Just to be clear: Acting to remove an “amoral” president who exhibits “erratic behavior,” acts in “impetuous, adversarial, petty and ineffective” ways, and displays “impulses [that] are generally…anti-democratic” does not “precipitate a constitutional crisis.” Enabling such a president to remain in office precipitates the crisis; taking steps to end so dangerous a presidency is how the “adults in the room” are supposed to address this kind of crisis.

This is an argument that has been made since the early days of the Trump presidency by serious constitutional scholars.

Wise members of Congress have taken an interest in the 25th amendment as a tool for checking and balancing errant presidents. And the wisest of their number, Maryland Congressman Jamie Raskin, has taken steps to strengthen that tool.

Raskin, who was a professor of constitutional law at American University’s Washington College of Law before his election to the House in 2016, now serves as the vice-ranking member of the House Judiciary Committee. Over the course of the past year, he has made a compelling case for consideration of how best to utilize the 25th Amendment—which outlines procedures by which “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…”

While that anonymous “senior official in the Trump administration” and his compatriots may have rejected the constitutional remedy, Raskin explains that “the 25th Amendment, adopted in 1967, does not leave this judgment solely to the Cabinet.”

“Under the 25th Amendment, the Vice President and a majority of the Cabinet or the Vice President and a majority of ‘such other body as Congress may by law provide’ can determine that the President is—for reasons of physical or mental incapacity—“unable to discharge the powers and duties of his office,” says the congressman from Maryland, who explains that, “Because an unstable President might fire his own Cabinet, Senator Birch Bayh, who sponsored the 25th Amendment, wanted to empower Congress itself to set up an independent ‘body’ to act with the Vice President in the event of presidential inability.”

Raskin has sponsored a bill, HR 1987, the Oversight Commission on Presidential Capacity Act, which would define the Congressionally appointed “body” that is called for in the 25th Amendment. If enacted, it would establish a permanent standing body, which would be available to act during any presidential administration.

As Raskin explains it, “this body will consist of a panel of elder statespersons (former Presidents, Vice Presidents, Secretaries of State, Attorneys General and so on), physicians, and psychiatrists—all of them selected in a scrupulously bipartisan and bicameral manner by Congressional leadership. The body will select an eleventh member as the Chair. It will only act to conduct a medical examination of the President at the explicit direction of Congress. And Congress always has the last word under the terms of the 25th Amendment.”

Sixty-five members of the House agree with Raskin and have signed on as cosponsors of his bill. They recognize that the future need not be left to the whims of anonymous op-ed writers.

“Congress has a constitutional duty under the 25th Amendment to define the process by which a judgment of presidential incapacity can be made if circumstances render such a judgment necessary, in this administration or any other,” says Raskin, who correctly observes that this matter is of “pressing and enduring importance to the security of our nation.”

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