Balkinization: Taking the Text of the Twenty-Fifth Amendment Seriously

Taking the Text of the Twenty-Fifth Amendment Seriously

Mark Graber

Donald Trump is constitutionally unfit to be President of the United States. The Twenty-Fifth Amendment to the Constitution of the United States requires the Vice President to assume the presidency whenever “the President is unable to discharge the powers and duties of his office.” The Twenty-Fifth Amendment does not condition the temporary or permanent removal of the president on the president being “physically” or “medically” unable to discharge the powers and duties of his or her office. Rather, the Vice-President is to assume the powers of the presidency when, for any reason, "the President is unable to discharge the powers and duties of his office.” A president who is a congenital liar and a bigot, under the explicit words of the Twenty-Fifth Amendment is unable to discharge the powers and duties of his or her office.

The last paragraph of Section 4 supports claims that the Twenty-Fifth Amendment is not limited to physical or medical conditions. That paragraph authorizes Congress to resolve, by a two-thirds vote of both Houses, whether a president is able to discharge the powers and duties of the presidency. Members of Congress as a whole have no particular expertise on physical, medical, or psychiatric conditions. That is for medical professions, who are given no role in the constitutional process for removing the president. Members of Congress do have expertise on whether a president, for any reason, is capable of discharging his or her responsibilities. Thus, given that Congress cannot determine whether a president is a sociopath, but can determine whether the president is a congenital liar, the best reading of the Twenty-Fifth Amendment is that Congress should focus on whether the president is able to discharge the powers and duties of office and not on whether the reason for that failure is some physical or medical problem.

The contrary position has absurd consequences. Consider a president who goes on a permanent vacation and refuses to discharge any of the powers and duties of the office. For political purposes, no difference exists between that president and the brain-dead president. If we limit the Twenty-Fifth Amendment to presidents with physical or medical conditions, however, we can only remove the brain-dead president. Consider a president who lies repeatedly, consistently utters bigoted remarks and makes irrational decisions. If we limit the Twenty-Fifth Amendment to presidents with physical or mental conditions, we can remove that president only if we discover that the behavior is question is caused by a brain deformity or by depression caused by the death of a loved one. For constitutional purposes, no difference exists between the congenital liar suffering from brain lesions, the congenital liar suffering from depression and the congenital liar who is just a rotten human being.

Donald Trump plainly meets the standards for removal from office under the Twenty-Fifth Amendment. A congenital liar cannot discharge the powers or duties of office. As Heidi Kitrosser points out in an important book, the constitutional separation of powers requires the public have the information necessary to hold government officials accountable. A president who averages several major lies a day, and who cannot tell the truth about matters ranging from attendance at the inauguration to the facts underlying his tax and immigration policies cannot perform the duties of office necessary for constitutional accountability. A bigot cannot discharge the powers or duties of office. The Fifth Amendment by case law and Fourteenth Amendment explicitly mandate that neither the United States nor any state shall “deny to any person within its jurisdiction the equal protection of the laws.” A president committed to white supremacy is unable to implement congressional legislation promoting this commitment to equality under law or appoint justices and other officials who will act consistently with the constitutional commitment to equality.

That Donald Trump is constitutionally unfit for office is as much a matter for constitutional politics as constitutional law. No politically sane person expects that Republicans in Congress will take seriously their constitutional obligation to determine whether Donald Trump has the capacity to discharge his presidential responsibilities as long as they believe Trump will sign tax cuts for their donors and appoint reactionary justices to the federal bench. Nevertheless, whether removal is politically possible at present or politically desirable should Democrats gain control of Congress is a separate issue from the more fundamental question whether the current occupant of the White House is capable of holding office. On that question, the Twenty-Fifth Amendment is clear. A president unfit for office is not entitled to deference or respect, even if for transient political reasons that president is not removed from office.

Posted 10:16 AM by Mark Graber [link]