The 25th Amendment Makes Presidential Disability a Political Question

Last week, in The New York Times, Ross Douthat became the latest and perhaps most prominent advocate of using the Twenty-Fifth Amendment to remove President Donald Trump from office. Section 4 of the Twenty-Fifth Amendment allows the vice president and a majority of the Cabinet to recommend the removal of the president in cases where he is “unable to discharge the powers and duties of his office,” and allows the House and Senate to confirm the recommendation over the president’s objection by two-thirds vote. Douthat argued that the Amendment should be invoked to stop what he calls a “childish president” who is unfit for office and who is unlikely to be impeached.

The response to Douthat’s suggestion was mixed. Jamal Greene argued for a broad reading of the amendment to remove “a compulsively lying President would be ‘unable to discharge the powers and duties of his office.’” On the other hand, Jonathan Bernstein at Bloomberg, Ian Tuttle in National Review, and John Daniel Davidson at The Federalist concluded, in different ways, that for elites to invoke a contested interpretation of the Twenty-fifth Amendment to remove the president would trigger a political crisis. Slate’s Dahlia Lithwick, in her summary of the Twenty-fifth Amendment commentary, argued that “the most practical problem with the Twenty-fifth Amendment option is that it won’t happen. The selfsame Cabinet and vice president tasked with assessing the president are still enabling him.”

It’s true that the use of Section 4’s involuntary-removal mechanism for the first time in American history—especially for a president who is not ill and who still has public support—could President Dwight Eisenhower, whose illness had helped to precipitate the drafting of the amendment, in support of the proposition that “the determination of the president’s disability is really a political question.”