On the 25th Amendment

One form of originalism is to just ask the guy who wrote the amendment about what he meant. With the 25th Amendment, you can do that and there’s a piece in The American Prospect about what he thinks about Trump and all this talk about the 25th.

His name is John D. Feerick, he turns 90 in July, and when we first tried to contact him on the day of perhaps the maximum interest in the constitutional amendment he penned, he was teaching a class—a Rule of Law seminar on (inter alia) the 25th Amendment, naturally. When he returned the Prospect’s call, he was not inclined to weigh in on the viability of his handiwork for deposing a president both Candace Owens and Rep. Seth Moulton have deemed “insane.”

“I’ve had questions like this going back to Reagan’s time, but I try to stay away from getting involved in questions about trying to apply the 25th Amendment to any situation,” he said. “I’m an independent voter, and I try to look at these matters not through the lens of ideology, but out of love for America and what is consistent with the Constitution.”

Hmmmm….centrists. Well, in any case…

“No set of definitions could possibly deal with every contingency,” Feerick wrote in a 1995 Wake Forest Law Review article, and he told Congress during debate on the amendment that inability “is more than a medical question.” Feerick has even said, agreeing with the assessment of Rep. Richard Poff (R-VA), that his solution is available “when the President … is unable or unwilling to make any rational decision, including particularly the decision to stand aside.”

But if the goal of Section 4 was to be flexible, the difficulties with using it in the modern day to cashier a president who has even minimal capabilities are legion.

The text of Section 4 begins rather simply, stating that the vice president and a majority of the “principal officers of the executive departments” can tell the House and Senate that the president “is unable to discharge the powers and duties of his office,” instantly granting the vice president temporary powers of the office as acting president. This would be a natural thing to consider if the president were in a car wreck and on a medical gurney, but not if he’s just contemplating war crimes. Wresting control through this provision has the look of a palace coup, and unless you have a very ambitious vice president (check) who can convince the cabinet to take his side (very much NOT check), it’s hard to see it happening.

But wait! There’s a side provision to get around the problem of a loyalist cabinet. Congress can create some “other body” to independently determine the fitness of the president under the amendment. If it does so, that body would replace the role of the vice president and the cabinet in determining the inability of the president. But that independent body would have to be created “by law,” and the way you create laws in this country is that they are signed by the president. Three months after the first Trump inauguration, Rep. Jamie Raskin (D-MD) introduced a bill that would have created an “independent commission on presidential capacity” featuring at least two physicians, two psychiatrists, and two retired statesmen; unsurprisingly, it never went anywhere under either Joe Biden or the Orange One, whom then-House Speaker Nancy Pelosi famously threatened to invoke Feerick’s handiwork to depose. I would not expect a president who didn’t want to be removed from office to sign into law the creation of a panel to assess whether they should be removed from office.

The problem with the 25th Amendment is that it is basically the kind of unworkable good government policy type of thing that has no chance of dealing with any reality in which it is needed.

That’s also true of the entire process, because the president gets a veto of sorts over his removal for incapacitation. Under the amendment, if the president sends a letter to the House and the Senate saying that he is in fact able to carry out the duties of the office, he instantly becomes president again. The vice president and the cabinet would then have four days to send their own letter, effectively saying no, the president is not able. At that point, the action shifts to Congress, which must vote to settle the dispute between the president and his executive branch. And that vote would take, once again, two-thirds majorities in both houses to affirm that the president is unable to perform, and revert control back to the vice president. Once again, this is a higher bar than impeachment.

We should add that in all of these scenarios, as long as the president doesn’t step down, he would still be the president, just stripped temporarily of the powers and duties of the office. What that means is anybody’s guess.

The guy who wrote this Rube Goldberg machine is still living, and bearing witness to lawmakers screaming for his amendment to be invoked when it plainly cannot serve the purpose they want. He was simply trying to solve a different problem, and no amount of longing for a deus ex machina to end a living nightmare can change that. Congress has the impeachment power to help themselves, and no real work-around for it, period.

In short, it’s nonsense to talk about the 25th Amendment as a realistic way to get rid of Trump. I really hate liberal fantasies. This is all about power. Everything is about power. Learn that and act upon it. The chances of the 25th Amendment being used to get rid of Trump—even if he had nuked Iran last night–is 0%.

“Why can’t we just come together and do the right thing” is the most naive question in American history, and yet enormous numbers of people from the center to the left rest their politics on this very phrase without asking how we got here in the first place or who “we” even is.