25th Amendment: How do we decide whether the president is competent?

What do we do if the American president is senile, unhinged, dangerously impulsive, divorced from reality, suffering from short-term memory loss, likely to start a nuclear war and therefore dangerous to the Republic? In one way or another those questions have been asked about Donald J. Trump during his first tumultuous year in the White House. The publication of Michael Wolff’s new book, Fire and Fury: Inside the Trump White House has resurrected the issue of presidential competency.

So what would we do with a president who is not able to do the job? In addition to impeachment (Article II, Section 4), the 25^th Amendment—and specifically Section 4 of the amendment—is the only other way the Constitution provides for removal of a president. Impeachment has a legal dimension—high crimes and misdemeanors. But the 25^th Amendment addresses the problem of fitness for office, and here the nation is in uncharted territory.

What exactly is it?

The 25^th Amendment to the Constitution was ratified in 1967, prompted by the assassination of President John Kennedy. Its purpose was to provide for the orderly transfer of power when the president dies, resigns or is incapacitated. So far Section 3 of the Amendment has only been used in cases where the president was physically incapacitated. President Reagan never invoked the amendment after his 1981 assassination attempt (causing some confusion when his Secretary of State asserted authority) but he did sign over power to Vice President Bush during colon surgery in 1985. It was invoked twice by President George W. Bush for short periods of time while he was sedated for a colonoscopy.

But Section 4 of the amendment has never been used and it opens up a gray area around presidential capacity. The wording leaves open the possibility that mental incapacity could become grounds for removing a president.

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. [Emphasis added.]

So, what would happen if the Vice President and other leaders get to the point where they go ahead and invoke the 25^th Amendment? If Michael Wolff’s reporting is to be believed the topic is “alive every day in the White House,” and staffers regularly say things like “We’re not at 25^th Amendment level yet.”[1] And what if a president—say Trump—disagrees that he is incapacitated? In response to Michael Wolff’s book the president tweeted that “my two greatest assets have been mental stability and being, like, really smart.” Trump, who also called himself a “very stable genius,” would then be able to (according to the Constitution) “transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists.”

End of story? Not so fast.

The vice president and the Cabinet or “such other body as Congress may by law provide” then have 4 days to send Congress their declaration that the President is unable to “discharge the powers and duties of his office.” At that point Congress has 48 hours to convene and 21 days to decide if the president is fit. If two-thirds of both houses vote to remove him, the vice president becomes the acting president.

Of course, the big problem here is that no vice president in his right mind would do anything that looked like he was trying to unseat and then succeed the president. I worked for Vice President Al Gore during Bill Clinton’s impeachment and saw how he went out of his way to support the president—with good reason. Vice presidents can do a great deal of damage to themselves and to our democracy by seeming to engineer a palace coup against the president who selected them. Short of watching Donald Trump run naked and screaming down Pennsylvania Avenue on prime-time television, Mike Pence (or any vice president) would never begin such proceedings. Ditto for the Cabinet officers Trump appointed. And, of course, the President could always fire the Cabinet members that went along with such a movement—throwing the entire effort into chaos.

Wading into this conundrum we have freshman Congressman Jaime Raskin (D-Md.). He is the sponsor of a piece of legislation that seeks to define the phrase in Section 4 which states “or of such other body as Congress may by law provide.” His bill, Oversight Commission on Presidential Capacity Act, would create a commission empowered to examine the president—any president—and report to Congress on the president’s capacity. It would thus bypass the need for the vice president and at least eight Cabinet secretaries to go to Congress and declare the president unfit.

As a former constitutional law professor, Raskin started wondering about the 25^th Amendment even before he got to Congress. As he points out, the first three sections of the amendment have been activated in the past. Section 3, he jokes, might as well be called the “colon” section, having been used when presidents had surgeries or tests involving the colon.

But when Raskin got to Congress he started asking about the “other body” mentioned in the first sentence of Section 4—the one section of the amendment that has never been used. And he found that in 50 years, Congress had never established an “other body” even though there are good arguments for it. First, it creates an alternative to vice presidential action which, as described above, has a very low probability. Second, Raskin’s commission would consist of ten members, appointed by the majority and minority leaders in Congress and consisting of four psychiatrists, four medical doctors and two retired statespersons (such as former presidents)—one from each party. These ten members would elect a chair. Thus, the commission would be completely bipartisan and contain opinions of non-politicians.

Raskin’s bill was introduced in the spring of 2017 and had 19 co-sponsors. It was barely covered by the press. However, it has steadily gathered additional co-sponsors, often in response to another of President Trump’s questionable statements or tweets. Raskin observes, “Essentially after every strange public outburst, there’s a huge influx of inquiries about HR 1987.”

Not surprisingly, as Congress returned from their break and from a week of headlines about Wolff’s book, the bill picked up seven more cosponsors. The following graph illustrates growth in support for the bill.

For all the hype around Michael Wolff’s book, the strange behavior that has people thinking about the 25^th Amendment has persisted all year long. From Trump’s bizarre insistence on the size of his inaugural crowd, his firing of the FBI Director James Comey, his insistence on insulting people with whom he shares power such as Republican members of the United States Senate, his taunting of the North Korean dictator, his retweeting of inflammatory anti-Muslim videos, to his ongoing war with the press, Trump’s behavior continues to shock people. And while some of it may make some political sense—such as taking on the media—much of it is and has been counter-productive. It is the propensity for self-inflicted wounds that most worries his friends and his foes alike, and is leading people to consider a piece of the Constitution that has never been considered before.

[1] From Wolff’s appearance on Meet the Press, January 7, 2018.