Presidential Power Plays Call for Constitutional Solutions: The 25th Amendment and Beyond

By Greg Guma

Two-hundred and thirty-one years after the US system of government was created in Philadelphia, it appears to be slowly unraveling. Among the recent signs is growing talk about invoking the 25th Amendment, a “constitutional coup” provision for replacing the president in cases of death, resignation or incapacity. 

According to Andrew McCabe, the former deputy FBI director fired last year, top Justice Department officials at least considered the 25th as an option after the 2017 ouster of FBI Director James Comey. But even Donald Trump’s removal won’t counter the long-term drift toward executive supremacy. To do that, the country may require something more fundamental, another Constitutional Convention.

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While speaking to California’s Public Interest Research Group in 1980, Ralph Nader put the presidency in an ironic, yet global perspective. At the time, President Jimmy Carter was struggling with a hostage crisis in Iran. Meanwhile, with the Republican nomination wrapped up, Ronald Reagan promised to win a renewed arms race with the USSR while simultaneously cutting taxes and implementing the conservative nostrum known as “supply-side economics.”

Noting that the race could have broad and drastic implications, Nader suggested a radical solution. “Ronald Reagan is such a threat to humanity,” he quipped, “that the whole world should be allowed to vote for US president.”

Clearly, that didn’t happen. But Nader’s point seems more valid than ever. Presidential power without meaningful accountability is deeply unfair and highly dangerous.

The creators of the US Constitution, although they could not anticipate everything, were certainly aware of the dangers of a drift toward monarchy and empire. Unfortunately, their 18th Century vision no longer meets the test. Even though the president technically needs congressional approval for expenditures and declarations of war, almost anything is possible if a “national security” rationale can be manufactured. Trump has made that all too obvious.

“The machinery of government is being moved to act on a lie,” noted Princeton Prof. Eddie Glaude on Meet the Press last Sunday, referring to the “national emergency” declared to fund Trump’s wall. “The constitutional crisis is here.”

Impeachment is again becoming a serious option. However, the last time that happened (Bill Clinton) the defendant ended up more popular afterward. And even Trump’s removal from office won’t counter the decades long development and evolution of the imperial executive. 

A president can be impeached for “treason, bribery, or other high crimes and misdemeanors,” but only if Congress chooses to act. The truth is, many of the manipulative, unethical or arguably illegal actions inspired, condoned or actively promoted by presidents are actually tested tactics that most members of Congress dare not publicly condemn, questionable as they may be. Too many others are complicit. 

The 25th Amendment deals with replacement of the president or vice president in the event of death, removal, resignation, or incapacity. One of the most recent additions to the Constitution, it was proposed by Congress and ratified by the states after the assassination of President Kennedy, and was first applied during the Watergate scandal, when Gerald Ford replaced Spiro Agnew as vice president, then replaced Richard Nixon as president. Nelson Rockefeller filled the new vacancy as appointed vice president. 

It looked like a quiet constitutional coup that left an unelected executive team in charge for two years. And one of the first things President Ford did was pardon his predecessor. This time around the pardons could begin any minute.

How would the 25th work with Trump? Under Section 4, the Vice President and a majority of the Cabinet would have to write the Senate President and House Speaker, explaining that the President “is unable to discharge the powers and duties of his office." Already highly unlikely. But with that Vice President Mike Pence would become “Acting President.” Then Trump would send Congress his own "written declaration that no inability exists." He would also threaten to retake control unless —within four days! — Pence and a majority of either (a) the cabinet that Trump appointed, or (b) another body established by Congress says he is unable to do his job. 

This in turn would force Congress to assemble within 48 hours, and to vote less that 21 days later. If two-thirds of both Houses decided that Trump simply couldn’t do the job, Pence would continue on as Acting President. If they failed to decide, however, Trump would regain control of the presidency and the country would be in even bigger trouble. Great TV, but the payback could be biblical.

There must be a better way to run a government, especially since “successful” removal or impeachment  in this case means handing the presidency to another kind of extremist, one backed by the Koch Brothers, an evangelical who effortlessly echoes presidential lies, yet thinks he is on a mission from God.

According to historian Barbara Tuchman, the office of president “has become too complex and its reach too extended to be trusted to the fallible judgment of one individual.” Thus, she and others have suggested restructuring; one example is a directorate or Council of State to which the president would be accountable. Such ideas were discussed but ultimately dropped at the original Constitutional Convention.

While embracing limits on executive power like “advice and consent” on treaties and key appointments, the 1787 Convention narrowly rejected having the president operate in conjunction with a Council, specifically to serve as a check on unilateral executive power. Benjamin Franklin said at the time that a Council of State “would not only be a check on a bad president but be a relief to a good one.”

Delegates to the original Convention struggled with how to give a president sufficient authority, free from dependence on the legislative branch, without allowing him to become an “elective monarch.” As a result, Article II does not clearly define the term “executive power” or any specific presidential authority in times of war. Congress was given control of military appropriations and rule-making for the regulation of land and naval forces, suggesting that the delegates wanted the two branches to share decision-making power over war. But their general confusion and vagueness about the relationship between the president and Congress left the door open for a gradual expansion of executive power, especially over foreign policy.

Fundamental changes are overdue. Even if the US constitutional system survives Trump, presidents will continue to seek expanded power until clear limits are imposed and public pressure reverses the trend. In the end, the country may not be able to avoid another Constitutional Convention. Even then, the rest of the world probably won’t get to vote for president. But at the very least Trump’s brazen abuse of the office invites some serious rethinking. 

As happened during America’s original Convention, the stated purpose could be eclipsed (or even hijacked) by a “revolutionary” move to revamp the entire system. Still, it does take the approval of two-thirds of state legislatures just to call one, and three-fourths of them to ratify its results. That’s a pretty high bar. As a result, the US Constitution has only been amended when an overwhelming majority of the public views the change as extremely important — and sometimes not even then.

There is nevertheless the risk that something inadequate or worse might emerge, along with new restrictions of basic rights. After all, autocratic leaders and policies have been gaining influence around the world. On the other hand, that’s also an argument for acting fast. Attempting to renegotiate some of the terms struck 231 years ago in creating the US government is certainly preferable to downplaying the drift toward royalism and tyranny.

Dan Rather recently offered a sarcastic take. “Here's a weird piece of trivia,” tweeted the former TV anchor. “Apparently Congress has Constitutional powers as well. And apparently the nation's Founders took those powers seriously because they saw how having a king worked out. Who knew?”

But as Thomas Jefferson wrote to James Madison in 1789, reflecting on whether their new national government would endure, “no society can make a perpetual constitution or perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please.” So let’s get started. 

Material in this article was originally developed for reports and editorials written as editor of Toward Freedom, an international affairs publication.