With an approval rating hovering in the 30s and a four-month tenure marked by incessant scandal, Donald Trump has inspired America’s latest favorite pastime: imagining the different scenarios that could result in him leaving the White House.
When it comes down to it, though, the list of options is not complicated. There are really only four ways a presidency can end early: impeachment, resignation, death or being declared incompetent under the 25th Amendment to the Constitution.
Putting aside death, there’s been seemingly endless commentary about the other three options. In particular, impeachment and the 25th Amendment have gotten a ton of attention recently, with many people seeming to believe that the latter could be a relatively easy way out of this mess the country has found itself in. Trump being declared unfit for office – something the majority of voters knew on Election Day – is certainly an appealing thought. But as a constitutional expert, I must note that there’s one big problem with all of this: Ousting Trump from office via the 25th Amendment is a fantasy. It’s simply never going to happen.
For anyone who doesn’t watch political thrillers, which feature this scenario quite regularly, the 25th Amendment is the part of the Constitution that provides for what happens when there’s a vacancy in the presidency. Section 1 of the amendment says that the vice president takes over if the president dies, resigns or is removed; Section 2 explains how the president can replace a vacancy in the vice presidency; and Section 3 says that the president can declare himself unfit for office, in which case the vice president takes over until the president declares otherwise.
Those sections are interesting, but it’s Section 4 that has people talking these days. The basic idea is that the vice president and a majority of the president’s cabinet can force the president out of office if they believe he or she is “unable to discharge the powers and duties of his office.” In other words, if enough high-level federal officials agree, they can force Trump out of the presidency. When described that way, it sounds like an elegant – and easy, even – solution to America’s current nightmare.
Recent commentary, including a Ross Douthat column in The New York Times last week, has tried to argue that the 25th Amendment might be appropriate for this president. These pieces have debated whether some combination of Trump’s mental state, personality, mendacity and connections with Russia could qualify him for removal under Section 4. Much of the discussion has focused on whether this is what was meant by the people who wrote and ratified the amendment. Does “unable to discharge the powers and duties of his office” mean just mental incapacity? Or does it mean a more flexible standard – i.e., whatever a majority of the people involved want it to mean?
Whatever the answer to those serious constitutional questions, anyone who bothers to read past the first paragraph of Section 4 will quickly realize something that almost every recent piece on the 25th Amendment has glossed over: It’s never going to happen.
How can I say this with certainty – especially given that I haven’t dared make a confident political prediction since November 8th? A comparison of the votes required to remove a president through impeachment and the 25th Amendment will explain.
To put it simply, the process required under the 25th Amendment is much more cumbersome than removal via impeachment. That’s not to say impeachment is a walk in the park. In fact, it’s usually because impeachment is so difficult – no president has been successfully removed via impeachment – that people talk about the 25th Amendment.
But let’s look at the fine print of Section 4. It starts with the basic procedure that everyone writes about – that the vice president and a majority of the cabinet can vote to remove the president. This is no small task in reality. Given that all of those people were hand-picked by Trump, it’s very hard to imagine Mike Pence and eight members of Trump’s cabinet voting against him.
And that difficult process would be just the beginning. If the president disagrees with their determination, which presumably Trump would, Section 4 says that he can simply declare that “no inability exists” and resume power. If that happens, the veep and a majority of the cabinet would have to repeat their vote, this time in the face of open presidential opposition.
At that point, the Constitution says Congress must get involved. Both houses would have to vote, with a two-thirds vote required to keep the president out of office.
By comparison, impeachment – which requires only a majority vote of the House followed by a two-thirds vote of the Senate – looks easy. (And, again, it’s not.)
To drive this point home, the below chart shows the number of Republicans who would need to act to remove Trump via impeachment, compared to those required to remove him via the 25th Amendment.
Why am I so confident the 25th Amendment will never be used, and really should cease being a part of the conversation? Because as hard as it is to imagine 42 Republicans voting to remove Donald Trump from office via impeachment, it’s downright impossible to imagine 123 doing so. (Remember that the VP and the majority of the cabinet would have to vote against Trump twice. So that’s at least 132 Republican votes against Trump.) To put an even finer point on it, if we were anywhere approaching 123 Republicans abandoning Trump, they’d just impeach him rather than go through the more difficult process. Even if the Democrats do well in the 2018 midterm elections, the number of Republicans needed to use the 25th Amendment will always be greater than the number needed for impeachment; it will be a steep hill to climb throughout Trump’s time in office.
So by all means, please keep thinking about how to remove this dangerous, erratic, obstructive man from the White House. It’s our patriotic duty to do so. But we must stop talking about the 25th Amendment as a serious option – because it’s not one.