Analysis: 25th Amendment is no quick solution for the next two weeks

WASHINGTON — Senate Democratic Leader Charles E. Schumer of New York on Thursday became the most prominent official to publicly call for using the 25th Amendment to remove Trump from office, calling it “the quickest and most effective way” to accomplish the task.

It’s neither.

The amendment was adopted in the 1960s, spurred on by President Dwight Eisenhower’s heart attacks and President John Kennedy’s assassination. It’s designed to deal with a president who is unwell, not one who is unfit, although the line between the two is admittedly fuzzy. And its complicated procedures can take up to 30 days to work through.

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In the 53 years since the amendment formally became part of the Constitution, its language allowing a president to declare himself or herself temporarily disabled has been used three times — by President Ronald Reagan when he had surgery to remove a cancerous polyp and by President George W. Bush twice when he had routine colonoscopies that required anesthesia.

The procedures for involuntarily sidelining an incapacitated president, by contrast, have never been used, and they are numbingly complex.

Here’s how it would work:


Vice President Mike Pence, with agreement of a majority of the Cabinet, would declare, in writing, that “the president is unable to discharge the powers and duties of his office.”

At that point, Pence would become acting president.

But if Trump disputed the disability claim, the amendment provides that he could issue a written declaration “that no inability exists.”

Then Pence and the Cabinet would have four days in which they could challenge Trump’s fitness.

Who gets to act as president at that point is not entirely clear, legal experts say, but if Pence and the Cabinet members send a written declaration to Congress that the president continues to be “unable to discharge the powers and duties of his office,” lawmakers would then have to rule on which side is right.

Congress went home Thursday morning after confirming Joe Biden’s electoral victory and isn’t due back to work until the eve of the inauguration on Jan. 20. (That recess also pretty much rules out impeachment, the other constitutional path for removing a president from office, although Schumer noted that Congress could reconvene early.)

Under the 25th Amendment’s terms, lawmakers would have 48 hours to return to Washington after receiving a declaration of continued presidential disability.

So that would mean a maximum of seven days so far, assuming a disputed attempt to invoke the 25th.

From the time Congress reconvenes, lawmakers would then have 21 days to decide whether Trump is fit to do the job. It would take a two-thirds vote to declare him disabled. By then, the country would be two weeks into the Biden presidency.

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Beyond the cumbersome timeline, scholars have noted that the amendment’s language about a president being “unable to discharge the powers and duties” of the office were drafted mostly with physical illness in mind.

While many critics have applied labels of psychological illness to Trump, such diagnoses pose “significant problems for psychiatrists under the most favorable of diagnostic conditions,” Robert Gilbert, a leading expert on the 25th Amendment, wrote in a law review article a decade ago.

At least three presidents, he noted, appear to have suffered from debilitating depression during their presidencies: Franklin Pierce and Calvin Coolidge were disastrously incapacitated; Abraham Lincoln triumphantly rose above his disability.

“The 25th Amendment is an important and valuable addition to the Constitution,” Gilbert wrote, but psychiatric diagnoses are complicated and hard to apply. “The law cannot codify that which medicine has yet to definitively resolve,” he wrote.