The 25th Amendment Is an Unlikely and Inapt Solution
Recent days have seen many Americans, including current and former lawmakers, calling for the exercise of a never-used constitutional mechanism against President Donald Trump—the involuntary removal provision of the 25th Amendment. These demands come on the heels of the president’s increasingly extreme rhetoric about Iran, where US forces have been involved in unauthorized military operations for more than a month. Most notable were the president’s social media posts appearing to threaten civilian infrastructure and predict the destruction of Iranian civilization:
Concerns about the president’s decisionmaking stability, not to mention his diplomatic and messaging instincts, are certainly understandable. Congress hasn’t declared war against Iran (Congress isn’t even in session); the Department of Homeland Security is shut down due to a lapse in appropriations; and Iran is surely capable of inflicting damage on the United States and allies, regardless of whether it would ultimately prevail in a military contest.
But the 25th Amendment is an unsatisfactory vehicle for addressing those concerns. Proposed and ratified in the years following the 1963 assassination of President John F. Kennedy, the amendment expands on the original Constitution, which specifies that the vice president steps in when the president has an “inability to discharge” the office’s powers and duties, but identifies no decisionmaker, provides no procedures, and gives no definition of “inability.”
Section 4 of the 25th Amendment resolves the first two ambiguities. Upon a declaration by the vice president and a majority of the cabinet that the president is “unable to discharge the powers and duties of his office,” the vice president becomes the acting president. If the president declares that he is able, he retakes his power unless the vice president and a majority of the cabinet disagree within four days, at which point power remains with the vice president and Congress has 21 days to decide the question. A two-thirds majority vote in both chambers is necessary for the vice president to continue acting as president.
Reasonable people can disagree about whether President Trump’s recent actions demonstrate an inability to discharge his powers and duties, just as there were good faith debates about whether former President Biden’s apparent cognitive decline warranted such a conclusion. But no one disputes that invoking Section 4 of the 25th Amendment is difficult, requiring government officials selected by, and likely close to, the president to take affirmative and public action against him.
There are good reasons for that difficulty. Invoking Section 4 is unavoidably antidemocratic and, even if reluctantly employed, can risk the appearance of something similar to a coup. It was aimed, as Gene Healy wrote for Cato in 2017, at “situations of near-total disability,” not the creation of “an ‘eject’ button for presidents who are impulsive, reckless, or otherwise spectacularly bad at the job.” More importantly, however, focusing on the unlikely invocation of the 25th Amendment is a distraction from the more fitting means by which Congress can constrain a rogue president.
In the Senate, for instance, confirmation requirements give senators significant say over the composition of senior executive branch staff; around 1,000 offices must be filled either by Senate-confirmed officials or time-limited acting officers. That number is arguably too large, taking up significant legislative time and delaying the efficiency of incoming administrations. But few would dispute that the Senate should devote substantial resources to vetting nominations for high-level positions, especially those responsible for advising on and implementing critical and time-sensitive decisions (e.g., entering into hostilities) from the White House. Indeed, Alexander Hamilton pronounced the Constitution’s Senate consent requirements as a “powerful” check, predicting that they “would tend greatly to prevent the appointment of unfit characters.”
Not only is it important to probe the character and judgment of such individuals, but senators can also extract valuable policy concessions from the nominees and the president in exchange for confirmation votes.
While some of those confirmation ships have sailed, senators could still hold up other executive officer appointments, whether or not the nominees have relevant portfolios. Sixty-six nominees are currently under consideration, and the president will no doubt be eager to fill the new attorney general vacancy at the Department of Justice.
The House, of course, has the power to impeach. Many scholars have opined that the impeachable offenses captured within the Constitution’s “high crimes and misdemeanors” standard properly include gross mismanagement, negligent discharge of duties, and, per Justice Joseph Story, “habitual disregard of the public interests.” One might make that breadth more explicit if drafting the impeachment clause anew, but the political reality is that an impeachable offense is probably whatever the House says it is.
Congress can also tie the president’s hands via annual funding bills, imposing constraints on the use of appropriations for the Department of Defense or any other agency. The policy leverage held by Congress in requiring the president to return for funding every year makes recent Republican proposals to appropriate three years of funding for Immigration and Customs Enforcement and Customs and Border Protection in one reconciliation package all the more perplexing.
To be fair, lawmakers aren’t (only) relying on the 25th Amendment. Some are renewing calls to impeach the president and others—perhaps most meaningfully—championing legislation under the War Powers Resolution of 1973 to direct the removal of US troops from hostilities abroad. That effort would require the hard work of coalition building but bears the distinct advantage of being within Congress’s institutional control. Its successful deployment would set a meaningful precedent for the balance of war powers in this and future administrations.
Congress has delegated too much of its policymaking powers to the executive branch, leaving Americans exposed to the daily whims of the White House on matters foreign and domestic. Looking for solutions in an ill-fitting constitutional backstop that must itself be initiated within the executive branch is an unfortunate continuation of congressional abdication. That proclivity is one we should more strongly than ever demand that lawmakers reject.