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How Can the 25th Amendment Be Used to Remove a President?

In a bombshell op-ed published in the New York Times, an official in President Trump's administration asserted that "senior officials in his own administration are working diligently from within to frustrate parts of his agenda and his worst inclinations." And then admitted this:

"Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until -- one way or another -- it's over."

That reference to a rather obscure Constitutional provision sent the masses scrambling for answers -- so much so that Google searches for "25th Amendment" outpaced searches for "Kim Kardashian." But the fact is, the 25th Amendment has never been invoked against a sitting president's will, so even legal scholars are left guessing at the potential outcomes. So, here's what the 25th Amendment says, how it might be used to remove a president, and what might happen next.

The Powers and Duties of the Office

The 25th Amendment was proposed in the aftermath of the assassination of President John F. Kennedy in 1963 and ratified in 1967. It establishes the procedures for replacing the president or vice president when either office is vacant, or the president is "unable to discharge the powers and duties of his office." To date it has only been used to fill vice presidential vacancies in the Nixon White House during and after the Watergate scandal, and to temporarily pass on power to the vice president when a sitting president has undergone major surgery.

Section 4 of the amendment, however, deals with the possible forcible removal of an acting president. Though the language of the section is vague, and can be read to apply more to a president who has become physically incapacitated rather than politically disagreeable (emphasis added):

Whenever the Vice President and a majority of either the principal officers of the executive departments ... 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.

The president can then challenge this determination, with a "written declaration that no inability exists [after which] he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department" continue to challenge the president's ability to govern. At that point, Congress would have three weeks to vote on the matter, needing a two-thirds vote of both houses to determine the president is unable to discharge the powers of his office.

And finally, if that happens, the vice president would "assume the powers and duties of the office as Acting President."

Physically Incapacitated or Politically Incompetent?

Again, no sitting president has ever been deposed using the 25th Amendment, and it is likely that any who were challenged would assert that the amendment was designed to address physical or psychological instabilities, and not to enforce political decorum. But some scholars, including University of Chicago Law School professor Eric Posner, speculated (last year) that it could be read more broadly:

But I mean incompetent in a political sense, not a mental sense. By politically incompetent, I mean incompetent to exercise the powers of the presidency in a way that meets the approval of the president's party as well as the opposing party. This could be because the president's values fall outside the mainstream (either they have changed while in office or he concealed them while running for office); he lacks the interest or attention span to inform himself about issues; or he lacks management abilities and is unable to govern effectively.

So, in theory at least, the answer is: Yes, the 25th Amendment could, conceivably, be used to remove a president. Only it's never been done before, and there seems no guarantee it will be used any time soon.

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