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More on the 25th Amendment

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MOBILE, AL- AUGUST 21: Republican presidential candidate Donald Trump greets supporters after his rally at Ladd-Peebles Stadium on August 21, 2015 in Mobile, Alabama. The Trump campaign moved tonight’s rally to a larger stadium to accommodate demand. (Photo by Mark Wallheiser/Getty Images)

One year ago I published an article advocating reforming the 25th amendment so as to make at least potentially more possible to use it to remove an unfit demagogue from the presidency. This was the conclusion, which considered what was likely to happen if Trump lost the election :

Seventy-seven days would pass before the inauguration of the new President. Those seventy-seven days would present countless opportunities for various abuses of presidential power. Given Donald Trump’s history of reckless behavior and contempt for both customary and legal restraints on presidential behavior, the possibility that he would employ the transition period to loot the treasury; pardon himself and all of his cronies; use the powers of his office to punish his political opponents; or, as his former personal attorney suggested in his testimony before Congress, even attempt to overturn the results of the election itself is far from merely a theoretical concern.

This kind of situation is precisely the sort of constitutional crisis that
Section Four of the Twenty-Fifth Amendment was designed to address—
even in its present, suboptimal form. We can only hope that Republican
elites can, under such circumstances, overcome their present obsequious
attitude toward the demagogue who has taken over their party and vigorously support the use of Section Four to forestall such abuse of the powers of the Presidency.

Should anything like this scenario come to pass, it will only make it more evident why legislative modification of Section Four is imperative.
Certainly, no such reform can take place until the government is in the
hands of a president and a party that has less to fear from a process that
will make it easier, as a practical matter, to remove an obviously unfit
demagogue from the Presidency.

When the United States of America is once again in that circumstance, such a reform should be undertaken as soon as possible. Even after Donald Trump is, one way or another, removed from office, we will continue to navigate a political world in which the threat to democracy and the rule of law from aspiring presidential demagogues will still be very much with us.

The great advantage of Section Four of the 25th amendment over impeachment and conviction is that removal under it is immediate: as soon as the vice president invokes it, the president loses all the powers of the office. This, again in theory, makes it potentially a much more suitable device for dealing with an unhinged demagogue like Donald Trump. (Obviously, Trump’s term ending isn’t eliminating the cultural forces that put someone as bizarrely unfit to be president as Trump in the White House — indeed, it’s probably exacerbating them).

The reform I argued for was for Congress to replace the cabinet’s function in the current version of Section Four with a standing committee, made up of people who for the most part couldn’t be fired by the president, who could recommend to Congress that the president’s behavior had become so egregious that he or she — for instance I wouldn’t be particularly surprised if Lauren Boebert were to be the Republican nominee four years from now — should be removed from office.

This past October, Jamie Raskin introduced legislation proposing a similar reform. Today, the House will vote on Raskin’s resolution calling on Mike Pence to invoke the 25th amendment.

This reform, which can be carried out by simple legislation, would be especially useful during the extremely dangerous last month of the lame duck period, when the 25th amendment can be used to remove a president successfully as long as a majority of one house of Congress accedes to its use via inaction. As we’re seeing, the end of the lame duck period is especially dangerous because it becomes even more difficult than usual to use the impeachment power to remove the president.

For such a reform to be practically useful outside the lame duck period, it would be necessary for the Republican party to be at least somewhat less insane than it has become at present — that is, for us to return to the world of 1974 rather than of 2021. But even the existence of such an independent standing committee would at least have a potentially have some sort of prophylactic effect on the worse versions of Donald Trump — one of which could well be the future version of Donald Trump himself — that will certainly be big parts of our political landscape in an increasingly decadent political culture.

Finally, some people are arguing that the framers and ratifiers of the 25th amendment didn’t intend it to be used in this way: according to these critics, it was only supposed to be used in situations where presidential unfitness was non-controversial. This is wrong as a historical matter, which is reflected by the fact that the amendment itself contains a mechanism for resolving controversies between the president and the vice president regarding whether the latter should remain Acting President after the amendment has been invoked.

Beyond that, who cares? The 25th amendment and the impeachment clauses are the only mechanisms we have to remove a deranged demagogue from office prior to the expiration of the demagogue’s term. As we’re seeing, they aren’t nearly enough, but we need to make the most of them as long as the current constitutional system lasts. Given the current trajectory of events in this country, that may not be too much longer.

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