by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Less than four months into his term, members of Congress and commentators are openly speculating about whether President Donald Trump ought to be removed from office, and about how to do so. There are two constitutional mechanisms available: impeachment, as provided by Article II of the Constitution; or by a majority vote of the cabinet (and, if necessary, the approval of two-thirds of both Houses of Congress), as outlined in the 25th Amendment.
In the New York Times on Wednesday, conservative columnist (and National Review contributing editor) Ross Douthat makes a case for the latter. …
… But the 25th Amendment is not the solution.
The first reason pertains to the appropriate function of the amendment. The 25th Amendment’s fourth section (the relevant section for Douthat’s purposes) employs the broad formulation of a president “unable to discharge the powers and duties of his office.” But the amendment arose as a response to specific, concrete episodes of physical incapacitation: James Garfield, who spent nearly three months in a coma following an assassination attempt, and Woodrow Wilson, who suffered a debilitating stroke in late 1919 and never fully recovered. These examples of incapacity are very different from what Douthat describes: Donald Trump’s mental stuntedness, emotional instability, and moral decrepitude. Douthat acknowledges that he is talking about a different sort of “incapacity,” but expanding the 25th Amendment to include this vaguer brief could make it a ready weapon for unscrupulous political maneuvering in the future.
There is also no need to do so. Impeachment, even without a clear-cut “high crime” or “misdemeanor,” remains an option.