How to invoke the 25th Amendment

It took 180 years until the Constitution’s 25th Amendment responded to a question asked at the Constitutional Convention of 1787: “What is meant by the term disability and who shall be the judge of it?” Now, following the attack on the Capitol by President Trump’s supporters, there is growing pressure on Vice President Mike Pence and the Cabinet to invoke the amendment’s inability provisions to remove Trump from the discharge of the powers and duties of the presidency.

It is important to understand the succession provisions of the amendment, which are contained in two sections.

Sections 3 and 4 of the amendment provide for the vice president to serve as acting president when the president is incapable of discharging the office’s responsibilities. Neither provision removes the president from office, as would happen following conviction by the Senate in an impeachment trial.

Section 3 allows the president to voluntarily declare his own inability and then transfer his powers and duties to the vice president. The vice president would serve as acting president until the president declares that he is able to resume his powers and duties. The use of Section 3 involves a personal judgment by the president.

Section 4 deals with an involuntary declaration of inability. Where the president is unable to discharge his powers and duties, the vice president and a majority of the “heads of the executive departments” (or “such other body” Congress may create by law) have the power to declare his inability. Although members of Congress have proposed legislation over the last four years to create an “other body,” none of the proposals have become law. Accordingly, the Cabinet is the only body currently authorized to act with the vice president under the 25th Amendment. Four of the 15 positions in Trump’s Cabinet are held by acting secretaries. The balance of the 25th Amendment’s legislative history indicates that the acting secretaries should participate in the Section 4 process.

In Section 4, as in Section 3, the declaration of inability needs to be sent to the president pro tempore of the U.S. Senate and the speaker of the House of Representatives. As soon as that is done, the vice president takes on the role of acting president.

That is not the end of the matter. Section 4 lets the president contest an inability declaration by the vice president and the majority of the heads of the executive departments. If the president issues a contrary declaration, the vice president and executive department heads have four days to decide whether to reassert that the president is disabled. In the meantime, the vice president continues to serve as acting president.

If they send another declaration to the president pro tempore and Speaker stating the president is “unable,” Congress needs to decide the issue in 21 days. In that period, the vice president continues to serve as acting president.

If the amendment were applied now, the 21-day period would run past the end of Trump’s term. If Congress did not take up the issue during that period, Trump would never return to discharging the powers and duties of the presidency because his term would have ended at noon on Jan. 20 under the 20th Amendment.

The 25th Amendment answered the question about “inability” posed at the Constitutional Convention with procedures instead of a definition. This approach was intended to provide flexibility because inability can take different forms. Situations involving physical and mental illness, whether temporary or permanent, were most frequently mentioned by the members of Congress who designed the amendment. Sen. Birch Bayh of Indiana, the principal author, said that under Section 4 the terms “inability” and “unable” “refer to an impairment of the president’s faculties, meaning that he is unable to either make or communicate his decisions as to his own competency.”

Senate Majority Leader Mike Mansfield of Montana said in 1964 that thanks to Bayh, the 25th Amendment provided a “foundation which will set well in the building which is this Republic.”

Over the course of the presidency of Donald Trump, the issue of inability has been raised time and again, as at the present time. With 13 days to go in his presidency, is it still ripe to invoke the amendment?

It is, in my view, if the vice president and the Cabinet conclude that he is unable to discharge his powers and duties, especially including providing for a peaceful transition of power to President-elect Biden. While the vice president and Cabinet were chosen for their loyalty, that becomes irrelevant under the Constitution, as they were expected by the framers of the 25th Amendment to put country first in implementing Section 4.

Rally backfire

President Trump played right into the Democrats’ hands — they knew there was going to be a support rally for Trump. After his talk, all he had to say was thanks for your support, now go home and I will handle this, but no. By saying “we will not take this any longer,” he started the ball rolling for the Democrat agitators that I am sure were in the crowd. All they had to do was start egging people on to break windows and doors while shouting support for Trump, and once this happens, stupid people do stupid things and it gets out of hand. The agitators’ job is done. They leave and all the Democrats have to do is denounce Trump and the Republicans, and they look great. Trump, you fell right into their hands.

Jimmy Durda

A new low For shame

I am embarrassed to be an American. What went on in Washington on Wednesday is not the America I grew up in. I hold the 535 members of Congress, all elected officials at the national, state and local levels and every political appointee responsible for the demise of decency in this country. They have neither shown nor given respect to each other or the American people, so what do you expect from the marginal fringe? My question is will they take a good, long, hard look at themselves to see how they contributed to this or will they just point their fingers at someone else?

Patricia Lifrieri

Rebuke

A message for so to be Senate Minority Leader Mitch McConnell: You propped up and attached your wagon to a corrupt and deceitful president who you and your sycophant Republican colleagues in Congress empowered and failed to call out. You followed Trump down the rabbit hole, allowing him to destroy your party. Worse yet, you played legislative rules games, refusing to bring up for a vote bills that would have passed and helped Americans in need. Now you will pay the price for placing politics above country, having to become a spectator to Democratic efforts to “build back better.” Georgia voters spoke, making clear that theirs is no longer a solidly

Republican state — something to which you contributed. I suspect your legacy won’t be what you thought it would be. Take a lesson from Stacey Abrams: When a political party’s primary strategy is voter suppression and spreading misinformation about their opponents, Republicans will eventually lose. Perhaps it is time for you to retire.

Omitted

Voicer William Cook writes that Pennsylvania changed its election laws without involving the state legislature. What Cook conveniently doesn’t say is that Act 77 of 2019 was a bipartisan compromise by the legislature. But, more importantly, he completely ignores the fact that any challenge to the constitutionality of Act 77 was to be made within 180 days after it was enacted. The legal challenge of Act 77 s constitutionality was made to Pennsylvania’s Supreme Court after Trump lost the election. Because this challenge was not made within 180 days, it was unsuccessful. Those are the facts, Mr. Cook. Maybe you should have been aware of them. Barbara Berg

Just plain dumb

Dayton, Ohio: Meredith McGehee reminds us that we have “nearly half the country believing the next president is illegitimate” (“What Republicans are about to do,” op-ed, Jan. 6). This country has many problems. It’s hard to see how we can solve them when so many Americans are stupid.

Vic Presutti

Left out

Brooklyn: Why do you never see Trump with his son by Mrs. Trump but you see him with his other sons? One must think they are ashamed of him. Poor kid.

Barbara Hargrave

Game goof

Glendale: How come Wednesday’s Crossword II was a repeat? I look forward to this puzzle every day to relax while eating my lunch! And of all days, with what went on in Washington — you ruined my appetite!

Misidentified

Cathy Branda

Howard Beach: I want to know why no news reporter has apologized to white women for profiling them as “Karens” related to the phone lady (“Seek ‘justice’ in phone tussle,” Jan. 5). I do feel for that young boy who was accused by that woman of stealing her phone; it was said that she profiled him because he was Black. Well, weren’t white women profiled because it was thought she was white? And guess what? She isn’t. She clearly states that she is Puerto Rican. I do believe white women are owed an apology. Can we get one? Roberta GurinoMorning chuckle Bradley Beach, N.J.: Thanks, Voicer Leonard Stevenson. Your “forever stamp” letter made me start my day with a laugh.