Government

A Quick And Dirty Guide To The 25th Amendment

Let's talk about this FOR NO REASON IN PARTICULAR!

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Last night, the New York Times reported that when the D.C. National Guard was deployed to the Capitol building, the authorization came from Vice President Mike Pence and not Donald Trump. This struck a lot of observers as curious because Mike Pence has zero authority to send out the National Guard. Professor Steve Vladeck told me that the Secretary of Defense, in this case Acting Secretary of Defense Christopher Miller, has the authority to send in the Guard without higher approval. Perhaps the Times article was a bit imprecise and that Pence didn’t so much “approve” the deployment as he was consulted and expressed support that the Defense Department accepted in making its own decision.

But still, I mused that maybe the report was accurate and that we’d already seen the invocation of the 25th Amendment’s fourth section, allowing the vice president to assume the role of Acting President temporarily if the president is unfit to perform the duties of the office. Some people pushed back that “we’d have heard if that happened,” but with an armed mob loose in Washington complaining about the Deep State and tensions rising in the Persian Gulf, it wouldn’t seem crazy if the national security apparatus clamped down on everyone involved until relative order was restored. It was an out-there theory, but one worth pondering. It turns out, I wasn’t alone. Former White House Press Secretary Joe Lockhart wondered the same thing.

Because if they didn’t invoke the 25th Amendment, it certainly sounded like a constitutional crisis. Which, also isn’t crazy with this administration.

Whether or not any of that’s already happened, we’ve gotten reports that it was discussed at some point yesterday:

But what does this 25th Amendment talk actually mean? Since it’s likely to dominate the news for the next couple of weeks — The National Association of Manufacturers called for officials to trigger the 25th Amendment procedure and an hour ago a Republican congressman called for Trump’s removal — let’s talk about it.

The ultimate expert on this provision is Michigan State College of Law Professor Brian Kalt. He literally wrote the book on the subject: Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment (affiliate link). So what does he say would happen if administration officials turned to the 25th Amendment? This flowchart from his book is the first step to understanding the process:

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Given the unusual number of “acting” cabinet members, many are wondering what that does to this equation. Professor Kalt explained in 2019 that “Lots of tweets assume acting secretaries can’t vote on 25th Amendment §4. But at most it’s unclear. The scholarly consensus is actings *can* vote, based mainly on a 1965 House committee report.” Moreover, if the acting members are not eligible to vote under this mechanism, they would ALSO not be counted for the purposes of achieving a majority — in other words, they’d be removed from the denominator too.

There are 15 cabinet positions for purposes of the law — “cabinet-level” positions don’t count, only the heads of executive departments. Of these, three are filled by “Acting” officials: Justice, Defense, and Homeland Security. So whether it’s a count of 15 cabinet members or 12 cabinet members, the vote still requires seven.

If this power were invoked, Pence would assume the role of Acting President for four days no matter what. There isn’t a shortcut for Trump to resume power by protesting that he’s fit for office. This is the wrinkle that runs beneath my outlier theory that this may have happened yesterday and that the cabinet merely gave Trump a timeout so Pence could do the job of mobilizing the troops. At the end of those four days, they could just hand power back to Trump. But, again, this probably didn’t happen and the 25th Amendment is still in the discussion stage.

But what makes the 25th Amendment uniquely powerful as a tool to sideline Trump during his Mad King stage is the fact that he has fewer than two weeks left in office, but the process takes 27 days to exhaust assuming everyone sticks to their guns. The cabinet and Pence have four days before they need to respond to Trump’s effort to reclaim power and then Congress would have two days to reconvene (they left after counting the votes yesterday) and 21 days to override the cabinet… at which point the question would be entirely moot.

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That said, unless this cabinet has already done this — and I’m thinking there’s only a very outside chance they did — it would take convincing seven of these people who have shown little to no backbone for years. On the other hand, rioters conquered the Capitol yesterday while Trump refused to do anything and that might sway a handful of minds. It only takes seven.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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