25th Amendment Scorecard

The 25th Amendment to the U.S. Constitution includes this provision:

Section 4. Whenever 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, the Vice President shall immediately assume the powers and duties of the office as Acting President.

There are several more paragraphs, allowing the President to dispute this designation. Final removal, if the President contests, requires a 2/3 vote by both the House and the Senate, determining that the President “is unable to discharge the powers and duties of his office.” While this finding should be easier to sustain than a conviction of “high crimes and misdemeanors,” the 25th Amendment actually requires more votes in the House than for impeachment, 2/3 versus a bare majority. Both procedures require a 2/3 vote in the Senate, but impeachment calls for a full-fledged trial, presided over by the Chief Justice of the Supreme Court, while the 25th Amendment procedure need not be so formal. On the other hand, there are several precedents for impeachment of a President, and none for invocation of the 25th Amendment procedure for involuntary removal. My own assessment is that the 25th Amendment is easier to invoke, but ultimately doesn’t offer a substantially easier path to removal than impeachment.

Despite these reservations I can’t help sharing the liberal dream that at some point DT’s obvious unfitness for office will lead to his removal under the 25th Amendment. How realistic is initial invocation of the 25th Amendment, setting aside the likelihood of the votes required in Congress if DT contested the determination? That depends on the officials who must act: the Vice President and a majority of the “principal officers of the executive departments.” Let’s look at who they are and how likely they are to invoke the 25th Amendment.

First and foremost is the Vice President, who must be a party to invoking the 25th Amendment. So far Mike Pence has been a perfect DT sycophant. My guess is that he’s terrified of alienating DT’s base in case DT does leave office before the end of his term. If so there’s basically no way that Pence will take an active role in removing DT, as is required by the 25th Amendment. He’s much more likely to stand modestly aside and let DT be impeached or resign. The requirement that Pence sign on basically leaves the 25th Amendment dead in the water (unless DT goes stark raving mad).

The other requirement for invoking the 25th Amendment removal process is that a majority of the cabinet must join in the designation. Here’s the current roster of cabinet members:

Cabinet Position Cabinet Member Comments Likely Vote
Secretary of State Rex Tillerson Adult. Allegedly called DT a “[expletive deleted] moron.” Yes
Secretary of the Treasury Steve Mnuchin Probable adult. Yes
Secretary of Defense James Mattis Adult, and best understands the tragic possible results of an unfit Commander in Chief. Yes
Attorney General Jeff Sessions Toxic. Has fought with DT but unlikely to help remove him. No
Secretary of the Interior Ryan Zinke Former Navy SEAL and Representative from Montana. Possible adult. Maybe
Secretary of Agriculture Sonny Perdue Former governor of Georgia. Possible adult. Maybe
Secretary of Commerce Wilbur Ross Former banker and investor. Possible adult. Maybe
Secretary of Labor Alex Acosta Dean of the Florida International University College of Law and former Justice Department attorney. Possible adult. Maybe
Secretary of Health and Human Services Don J. Wright Acting, after resignation of Don Price. Not sure whether he would qualify for participation in 25th Amendment removal. Maybe (if qualified)
Secretary of Housing and Urban Development Ben Carson Fruitcake. No
Secretary of Transportation Elaine Chao Former United States Secretary of Labor and wife of Senator Mitch McConnell. Probable adult. Yes
Secretary of Energy Rick Perry Zero. No
Secretary of Education Betsy DeVos Toxic witch. No
Secretary of Veterans Affairs David Shulkin Under Secretary of Veterans Affairs for Health under President Barack Obama. Probable adult. Maybe
Secretary of Homeland Security Elaine Duke Acting, after John Kelly resigned to become White House Chief of Staff. Maybe (if qualified)

I count 4 Yes and 4 No. The balance would be tipped by the Maybes (5 if acting heads don’t qualify and 7 if they do). But again, without Pence nothing can happen, and I don’t see him getting on board unless DT goes stark, raving insane.

There have been reports that Tillerson, Mnuchin and Mattis made a “suicide pact” before accepting their positions, providing that if one of them were removed by DT the others would resign. Such an agreement, if it existed, wouldn’t be enforceable. But it’s worth noting that if these three were to leave the cabinet it would become much more difficult to get a majority of cabinet members to support removal, even if Pence were willing to sign on.

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