On Sunday morning, the president of the United States took time out from mulling the North Korean nuclear crisis to retweet a gag GIF from a fan with the Twitter handle “@fuctupmind.” In such circumstances, you can hardly blame people for worrying about the condition of the president’s mind.
Prompted by President Donald Trump’s repeated outbursts of “Twitter Tourette’s” and erratic public appearances, a growing number of legislators advocate using the 25th Amendment to remove the president on the grounds that he’s mentally “unable to discharge the powers and duties of his office.” Rep. Zoe Lofgren, D-Calif., recently introduced a resolution calling for Trump’s examination by “psychiatric professionals” and “immediate action” by Vice President Mike Pence and the cabinet. A similar measure, the “Oversight Commission on Presidential Capacity Act,” from Rep. Jamie Raskin, D-Md., now has 28 co-sponsors, including more than half of the Democrats on the House Judiciary Committee.
Granted, there’s ample reason to worry about a president who drifts from ranting at Boy Scouts to making off-the-cuff nuclear threats. But declaring Trump mentally disabled is constitutionally dubious and wildly impractical. In their quest to “stop the madness,” the 25th Amendment brigade might create a situation more bizarre and destabilizing than the Trump presidency itself.
That’s because the convoluted process Section 4 of the amendment sets up for replacing the president could stick us with two presidents and two cabinets jockeying for recognition as the “real” government. The term “constitutional crisis” gets thrown around far too loosely, but the “25th Amendment solution” might just deliver the genuine article.
Back in 2012, when Trump was best known as the host of “Celebrity Apprentice,” law professor Brian Kalt published a book, “Constitutional Cliffhangers,” that identified the 25th Amendment as a “constitutional weak spot” that could crack, if put to the test. To illustrate the danger, here’s an updated version of the scenario Kalt sketches.
Imagine Vice President Mike Pence is privately more Machiavellian than he lets on; and he’s begun plotting with his colleagues at the Cabinet’s weekly Bible Study meeting. Pence and company decide to pull the trigger, activating Section 4 with a declaration to the Speaker of the House and the president pro tem of the Senate.
Here’s how it might play out from…