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25th Amendment Was Openly Discussed Over Three Years Ago.

Posted on | January 7, 2021 | 3 Comments

Mike Magee

Three years ago, I taught a fully subscribed course at the Presidents College at the University of Hartford on the 25th Amendment. My exploration that year was triggered by a series of articles initiated by New York Times conservative columnist, Ross Douthat.

On May 16, 2017 he wrote “The 25th Amendment Solution for Removing Trump.” I will not summarize the entire course here but would like to accomplish three things:

  1. Reinforce the fact that the American public was adequately warned (3 1/2 years ago) of the risk that reached full fruition yesterday – but choose not to act.
  2. Douthat’s piece triggered a journalistic debate which I summarize below with four slides drawn from my lectures.
  3. Were Pence and the cabinet to activate the 25th Amendment, as it is written, Trump would have the right to appeal “his inability”, forcing the Congress to decide whether there was cause to remove the President. With 13 days in his term remaining, procedural timing may preclude the use of this instrument.

Here are the slides:

In 2017, Scott Bomboy, chief of the National Constitution Center, wrote:

“Section 4 is the most controversial part of the 25th Amendment: It allows the Vice President and either the Cabinet, or a body approved ‘by law’ formed by Congress, to jointly agree that ‘the President is unable to discharge the powers and duties of his office.’ This clause was designed to deal with a situation where an incapacitated President couldn’t tell Congress that the Vice President needed to act as President.”

“It also allows the President to protest such a decision, and for two-thirds of Congress to decide in the end if the President is unable to serve due to a condition perceived by the Vice President, and either the Cabinet or a body approved by Congress. So the Cabinet, on its own, can’t block a President from using his or her powers if the President objects in writing. Congress would settle that dispute and the Vice President is the key actor in the process.”

“On our Interactive Constitution website, scholars Brian C. Kalt and David Pozen explain the problematic process if the Vice President and the Cabinet agree the President can’t serve.”

  1. “If this group declares a President ‘unable to discharge the powers and duties of his office,’ the Vice President immediately becomes Acting President.
  2. If and when the President pronounces himself able, the deciding group has four days to disagree.
  3. If it does not, the President retakes his powers.
  4. But if it does, the Vice President keeps control while Congress quickly meets and makes a decision…
  5. The Vice President continues acting as President only if two-thirds majorities of both chambers agree that the President is unable to serve.”

Comments

3 Responses to “25th Amendment Was Openly Discussed Over Three Years Ago.”

  1. stan becker
    January 7th, 2021 @ 1:15 pm

    It seems clear that Mike Pence should call the Cabinet together and invoke the 25th ASAP. Mr. Trump incited those who soon after his speech swarmed the Capitol. Inciting violence is a crime and attempted tampering with the election (Georgia) is a felony.

  2. Mike Magee
    January 7th, 2021 @ 1:21 pm

    I agree, Stan. I believe, if there is a will (even with only 13 days left), there is a way. As important, it is unclear whether there is another way to control his behavior over the next few days. Best, Mike

  3. Lawrence Williams
    January 8th, 2021 @ 10:40 am

    While Impeachment or proceeding pursuant to the provisions of the 25th Amendment are both reasonable undertakings at this time, they are cumbersome and take significant time to reach a final determination.
    I believe that Donald Trump is mentally ill and is a DANGER TO HIMSELF and others. Thus he should immediately be hospitalized and sedated to PROTECT HIM from harming himself or others. And that hospitalization should continue until at least January 21, 2021

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