The Unworkable Amendment

The only way Trump will be removed from office is by impeachment or a vote of the people – not a tangled Constitutional amendment.

January 23, 2018
President Trump

All it required was one day for Donald Trump to flagrantly misrepresent the cognitive test that the White House physician, Dr. Ronny Jackson, had administered to the 71-year-old president.

Briefing the press last Tuesday, Jackson, who served in a similar role for Barack Obama, mentioned that Trump had racked up a perfect score on the Montreal Cognitive Assessment, designed to test mental deterioration

But in an interview Wednesday with Reuters about North Korea, Trump bragged that dealing with this rogue state with nuclear weapons was a problem that Bill Clinton, George W. Bush, and Obama had deliberately bequeathed to him. As Trump put it triumphantly, “I guess they all realized they were going to have to leave it to a president that scored the highest on tests.”

That's like new parents demanding immediate admission to Harvard for their baby because of a perfect score on the Apgar Test. In the Trump universe, all knotty foreign policy problems are reserved for the leader who can do the best job drawing an accurate clock face and recognizing animals from Africa – a continent, incidentally, filled with countries that don't measure up to the president's exacting standards for immigrants.

Trump's cognitive exam and the credibility of Dr. Jackson complicated for the moment the eager talk on the left of removing Trump from office under the presidential disability provisions of the 25th Amendment.

But psychiatrists like Dr. Bandy Lee of Yale remain unrepentant in their conviction that Trump's mental health represents a clear and present danger. As she wrote in the Hartford Courant last week, "[Trump] has also shown impulsivity, recklessness, paranoia, a loose grip on reality, a lack of empathy, rage reactions, and a constant need to demonstrate power – and, with the greatest arsenal in human history under his sole command, even a nuclear holocaust is not off the table."

Variants of this view remain common. An ABC News/Washington Post Poll released over the weekend found Americans evenly split (48 percent yes versus 47 percent no) on the knotty issue of whether the president is "mentally stable." This is not a question that pollsters felt compelled to ever ask about any prior president.

And inspired by Michael Wolff's book, Fire and Fury, armchair shrinks are still brandishing the textbook definition of narcissistic personality disorder as if it were a signed business deal between Trump and Vladimir Putin. It remains impressive how many commentators – with maybe two college psychology courses under their belt – are certain that they have found the Rosetta Stone to decipher Trump's psyche.

None of this is to deny that a Donald Trump presidency is a menace to democratic norms and, even conceivably, peace on the Korean peninsula. But the anti-Trump fascination with the 25th Amendment seems a dangerous gambit for a simple reason: Unless the president is running around the White House grounds naked with a butterfly net, do we really want to give psychiatrists (or any medical personnel) the power to overturn a presidential election?

Even if the Montreal Cognitive Assessment is far from a complete psychological workup, it does strongly suggest that there has been no deterioration in Trump's mental competence in the year that he has been president. That means that the public manifestations of the president's erratic temperament, his anger, his limited attention span, his out-of-control ego, and his grandiose pronouncements were all there for the voters to assess during the 2016 campaign.

The history of the 25th Amendment indicates that it was never designed to rewrite an election.

It is an entirely different remedy than impeachment, which, of course, is a mechanism to replace a healthy president who has committed grave offenses. More detailed than most parts of the Constitution, the 25th Amendment was written to handle two dire situations: the death of a president thereby leaving the vice-presidency vacant and a president who becomes severely incapacitated while in office.

As a freshman senator in the mid-1960s, Birch Bayh steered the 25th Amendment through Congress to its 1967 ratification by the states. Bayh's almost-forgotten 1968 memoir of the battle to clarify presidential succession, One Heartbeat Away, remains the best single guide to historical intent.

The catalyst for the 25th Amendment was the imagery of Lyndon Johnson speaking to Congress after the Kennedy assassination. Seated behind LBJ in television coverage of the event – a photograph is featured on the cover of One Heartbeat Away – were the two men next in line for the presidency: 71-year-old House Speaker John McCormick who had an uncanny resemblance to the Grim Reaper and Carl Hayden, the cadaverous 86-year-old president pro tempore of the Senate, who had represented Arizona since it had become a state. 

By early 1964, there was consensus that continuing to turn to the geriatric leadership on Capitol Hill in the case of a vice-presidential vacancy was untenable. But the vexing problem was who to put in the heartbeat-away job when the former vice president was occupying the Oval Office. There was strong opposition to elevating the Secretary of State or any other Cabinet member to the next-in-line position since they had never been elected to their current posts.

In fact, as Bayh began looking into presidential succession as the chairman of an obscure Senate Judiciary subcommittee, he encountered what now seem like off-the-wall suggestions for filling a vice presidential vacancy. Influential GOP Senator Kenneth Keating proposed electing two vice presidents every fours years – if you will, an heir and a spare. Richard Nixon, testifying between presidential campaigns, pressed for the unusual and ungainly idea of reconvening the Electoral College to select a new vice president.

Against this backdrop, dealing with presidential disability was an afterthought like getting X-Rays when you go to the dentist for a teeth cleaning.

Whether you date the problem back to Woodrow Wilson's stroke or James Garfield lingering near death for 80 days after his 1881 assassination, the risks of an incapacitated president had grown far greater with the hair-trigger realities of the Cold War. But even after Dwight Eisenhower's severe heart attack and mild stroke, there was little impetus to use a constitutional amendment to codify the rules for presidential disability. Instead, John Kennedy simply emulated the Eisenhower model of writing a memo to his vice president about how to handle a presidential health crisis.

When, with an impetus from the American Bar Association, Bayh's subcommittee discussed presidential disability, there was some question whether a constitutional amendment was needed. Richard Neustadt, the leading scholar of the presidency, passionately argued in a hearing that the current system of signed agreements was "entirely adequate" to deal with an incapacitated president. In Neustadt's view, any mechanism such as a Cabinet committee to assess disability "would hang over the head of every incoming president."

Other experts recommended that all decisions on a president's medical fitness to serve should be made by a blue-ribbon committee. Anticipating by a half century a recent proposal by Maryland Democratic Rep. Jamie Raskin, political scientist James McGregor Burns pushed for a disability commission consisting of the Chief Justice of the Supreme Court, the secretaries of State and Treasury, the House speaker, and the president pro of the Senate – plus one doctor appointed by each of them to examine the president.

Burns purposely excluded the vice president from any role in a presidential health crisis. His reasoning: "The vice president is the worst person to decide presidential inability. Not because he would grab for power – though this is always possible – but the opposite: He would hesitate to take any action that would give the appearance of over-eagerness or that could be used against him in the next election."

The shrewdness of Burns's insight is reflected in the awkward role that Vice President George Bush found himself in after the 1981 shooting of Ronald Reagan and the uneasy status of Vice President Al Gore during the impeachment of Bill Clinton.

What is telling is that almost no attention was given to the psychological incapacity of a president during the debates over the 25th Amendment.

When it was mentioned at all, it was only flicked at as an unlikely contingency. For example, Herbert Brownell, Eisenhower's attorney general, testified about a situation when the president "was mentally unbalanced, or something of that sort, which would be very obvious to everyone when you consider the white heat of publicity that beats upon the White House."

Judging from the op-ed battles over Trump's mental health, it is safe to say that, in reality, nothing is "very obvious to everyone" despite a tweet-happy president whose public conduct is bizarre in ways that Brownell could never have imagined.

These 1960s you-know-it-when-you-see-it attitudes about psychological health help explain why the 25th Amendment is completely unworkable. And that is true, even if Trump were afflicted with narcissistic personality disorder or some form of slow-moving mental deterioration.

To illustrate the problems, let's imagine what would happen if a concerted effort were made under the 25th Amendment to find Trump mentally unfit to continue to serve as president.

The most direct approach under the constitution would be for Vice President Mike Pence and a majority of the Cabinet to vote to temporarily remove Trump from office. That would require Pence to take an activist role – despite the argument dating back to James McGregor Burns that a VP would be inclined to do as little as possible in a succession crisis. Also, the amendment doesn't differentiate between the importance of the Cabinet departments so Secretary of State Rex Tillerson would have the same vote as Ben Carson, the HUD secretary.

There is another approach, though.

If the Democrats won the House (current odds: a bit better than 50-50) and the Senate (a plausible long shot in a wave election), then the votes might be there for Congress in 2019 to appoint a star-spangled commission to assess Trump's mental health. This option is covered by the 25th Amendment's language: "...or such other body as Congress may by law provide."

Let's say that this independent body (congressional leaders from both parties, retired statesmen and doctors) votes along party lines to make Pence acting president – despite the loud opposition from Trump, Pence, the White House, and the Cabinet.

Under this scenario, a defiant Trump would immediately inform Congress that he remains a "stable genius" and that it was "fake news" and a "Hillary plot" that he is mentally incapacitated. The 25th Amendment says that, in this situation, Congress must decide whether Trump should be restored to the full powers of the Oval Office or whether Pence remains acting president.

Now for the catch that makes the 25th Amendment unworkable except in cases of near-unanimity about the president's condition. The amendment was predicated on the valid assumption that it should require a high bar to declare a president unfit to serve over his objections. So under the Constitution, unless the Democrats could muster two-thirds majorities in both the House and Senate to block him, Trump again would become president. And, of course, Fox News would immediately run round-the-clock panels chortling over the failed Democratic coup.

It was Herbert Brownell who identified what is required for the presidential disability provisions of the 25th Amendment to be effective: "Ultimately, the operation of any constitutional arrangement depends on public opinion and upon the public's possession a certain sense what might be called 'constitutional morality.'"

A plot to remove a sitting president – based on the findings of unelected psychiatrists – would not pass the smell test with Trump voters. And, for that reason, it would not uphold what Brownell called "constitutional morality."

The truth is that in almost all situations, the Constitution does not protect the American people from the dangerous consequences of an unwise presidential vote. And that will remain the case, no matter what revelations emerge from the next explosive best seller about the inner workings of the Trump White House.

(Photo: Getty)

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.