Concerns about the workings of the Trump White House have led some to turn to one of the most obscure provisions of the US Constitution in search of a path forward. This is a bad idea. In particular, Section 4 of the 25th Amendment has been getting recognized more and more, I notice.
Added during the presidency of Lyndon Johnson, the amendment lays out procedures for succession of the office of the president. Section 4 specifically contemplates the possibility of involuntary succession of the office, or “contested removal” of the president. It empowers the vice president and a majority of the Cabinet to declare that the president “is unable to discharge the powers and duties of his office” and transfer those powers to the vice president. If the president objects, the office returns to the president unless Congress affirms that the president is unable to assume those duties by a two-thirds vote of both chambers.
This is a high hurdle, as it should be. The procedure for involuntary succession is harder to invoke than the impeachment power, since it requires the agreement of the vice president and members of the Cabinet (who have no say in the impeachment process) and a two-thirds vote in the House (whereas impeachment only requires a simple majority in the House). On the other hand, the Constitution gives little hint of when a contested removal would be warranted.
While the standard for impeachable offenses in the Constitution is not very specific, the standard for involuntary succession is even less specific. The Constitution provides no guidance on what it would mean for the president to be unable to discharge the powers and duties of the office, and it does not require any kind of trial in Congress to fairly evaluate whether the declaration of unfitness is true.
Some have touted the 25th Amendment option as the proper vehicle for removing Donald Trump from office on the grounds that he is generally unfit for the presidency. This is very similar to the argument that some activists made to the Electoral College when encouraging pledged presidential electors to refuse to cast their ballots for Trump. I thought that lobbying effort was a dangerous mistake. It does not work much better in the context of the 25th Amendment.
Despite ethical rules against doing so, mental health professionals have asserted that Trump is “too mentally ill” to discharge the powers and duties of the office. It has become commonplace to declare that Trump is “actually crazy.” Ross Douthat has argued in the New York Times that Trump is like a child and a “child cannot be president.” This would avoid forcing members of the Senate to declare that Trump is guilty of committing high crimes and misdemeanors, when many argue that the president is not bad-intentioned or ruthlessly abusive but simply careless and incompetent to shoulder the burden of exercising the office of the presidency.
The concern about the inappropriateness of the impeachment power under such circumstances is a real one, and it is not the first time that we have struggled with that problem. In the very first Senate trial of an impeached federal officer, the senators worried that they were being asked to convict someone of a crime when it was unclear that the officer was capable of committing a crime. Federal Judge John Pickering was a New Hampshire Federalist, whose odd behavior on the bench came to the attention of the new Jeffersonian majority after their smashing electoral victory of 1800.
The Jeffersonians were already upset with the federal courts, which they viewed (with good reason) as deeply partisan and actively hostile to the newly elected Democratic Republicans. They were primed to fight back, and they did. Shortly after taking office, they repealed the Judiciary Act of 1801, throwing a number of Federalist judges who had received “midnight appointments” off the bench. The Jefferson administration refused to deliver the commission to the office of justice of the peace to William Marbury, who had received his appointment before Jefferson’s inauguration. Ultimately, the Jeffersonians brought impeachment charges against Associate Justice Samuel Chase, who had been a particular thorn in the side of the Democratic Republicans before the election. Before doing so, however, they impeached Judge Pickering.
In hindsight, some saw the Pickering impeachment as a test run for the Chase impeachment and perhaps a wholesale cleansing of the federal courts, but Pickering posed a somewhat unique problem. Although the record is not entirely clear, there was general agreement that Judge Pickering had become mentally unfit to perform his duties as a federal judge. Perhaps he was descending into senility and madness. Perhaps he was just suffering the effects of alcoholism. Whatever was wrong, it could no longer be kept hidden, and it was affecting his work.
Pickering had a distinguished career and had served for several years on the federal bench without incident, but as the new century dawned his behavior was becoming increasingly erratic. His family depended on his judicial salary, however, and the local Federalists did not want to create a vacancy for President Jefferson to fill and so refused to encourage Pickering’s retirement. Other judges took over most of his duties, but the repeal of the Judiciary Act removed that option.
Before long, Pickering was delivering drunken, intemperate political rants from the bench, and soon the administration was hearing complaints from constituents in the judge’s district. The Democratic Republicans were reluctant to put Pickering’s mental condition in the record, and so tried to focus their attention on his actions. The Federalists were implacably opposed to any effort to remove Pickering from the bench.
Jefferson posited that Pickering’s “intoxication” was a sufficient cause to sustain an impeachment, but at least one Jeffersonian senator worried that “I know of no law that makes derangement criminal.” The judge’s son sent a letter to the Senate pleading that his father was “insane, his mind wholly deranged, and altogether incapable of transacting any kind of business which requires the exercise of judgment, or the faculties of reason.” He concluded that the judge therefore was “incapable of corruption of judgment, no subject of impeachment, or amenable to any tribunal for his actions.”
According to Pickering’s friends, there was no constitutional mechanism to remove a mentally unfit judge from office. The congressional majority did not think that was a viable possibility if the constitutional system were to be functional. The Jeffersonians eventually swallowed their doubts and convinced themselves to focus on Pickering’s evident drunkenness and inappropriate behavior and ignore his alleged insanity. Pickering was removed from office, but no one felt very good about it.
For those who believe there is something desperately wrong with the current president, they face a somewhat similar dilemma as the senators confronted by the spectacle of a demented judge. The 25th Amendment offers a tempting way to escape that conundrum, but history has tended to endorse the approach taken by the Jeffersonians in the Pickering case.
There are evident risks to opening the door to using the 25th Amendment to remove presidents on the basis of general concerns about unfitness or mental instability. One does not have to read Michel Foucault to recognize that there is a long history of using the discourse of mental illness to discipline unapproved and unconventional social behavior. It is one thing for the Cabinet to declare that a president in a coma is unable to perform the duties of his office; it is quite another for it to declare that the president is too ill-tempered, absent-minded, morose, anxious, narcissistic, undisciplined, or just plain stupid to perform those duties.
Assessing the character and competence of candidates is the central thing that voters do in a representative democracy. They undoubtedly make mistakes in making those assessments, but in a popular form of government they are entitled to make those mistakes. Empowering a set of political elites to overturn the judgment of the people on the question of the general fitness of an elected official takes a large step toward autocracy and is all too reminiscent of the privilege claimed by generals in polities subject to repeated coups.
The 25th Amendment option only has any real critical purchase when the alleged evidence of the president’s disability consists of a set of discrete and identifiable actions that amount to not just embarrassments, misjudgments, or policy errors but abuses and offenses that are inconsistent with the requirements of the office. In other words, the 25th Amendment option only becomes credible when the president has committed impeachable offenses. If there is good cause to remove a sitting president who is capable of objecting to his removal, then the only proper course of action is to build the case that the president has committed impeachable offenses and removal is essential for the health of the republic.
The precedent set by the Pickering impeachment is that the House and Senate should not focus on the motivations and causes of bad behavior by federal officers nor concern themselves with the state of mind or mens rea of the officer. An impeachment is not a criminal trial, and Congress is not concerned with punishing the guilty. An impeachment turns on an assessment of whether an officer has committed offenses that are fundamentally inconsistent with the expectations of the office and pose an ongoing threat to the office and the republic.
Impeachment procedures require that the members of Congress build that case in public and advance their claims in the face of a vigorous defense and in a fair hearing, and they require senators to enter a verdict under oath to do “impartial justice according to the Constitution and the laws.” If a president is to be removed from office because of his actions, then impeachment is the constitutionally prescribed.
Keith E. Whittington is the William Nelson Cromwell professor of politics at Princeton University and currently director of graduate studies in the department of politics. He is the author of Constitutional Construction: Divided Powers and Constitutional Meaning, and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in US History.