Commentary: Don’t use 25th Amendment for political reasons

By Dr. Samuel B. Hoff

Amid the fallout from the attack on the Capitol and its derivation are calls for removing President Donald Trump via the 25th Amendment. Notwithstanding the evidence for Trump’s ouster, there are several appropriate mechanisms for punishing the chief executive. The 25th Amendment should not be considered, as it was envisioned as a remedy rather than simply a terminal reprimand.

Samuel B. Hoff

There were three reasons for the ratification of the 25th Amendment to the Constitution in 1967. The first reason was to provide a means of legitimizing a vice president’s elevation to the presidential office following the death or resignation of a president.

The second and related rationale was to furnish a way for the new president to fill the vacant vice presidential office. Throughout American constitutional history, there have been eight chief executives who died in office, seven vice presidents who passed in office, one president who resigned and two vice presidents who resigned before the end of their terms. Of these, all but the Richard Nixon-Spiro Agnew resignations as president and vice president, respectively, occurred before the 25th Amendment was ratified. Pursuant to the amendment’s ratification, the specter of a vacant vice presidential office for an extended period — which existed for over a quarter of U.S. history — was minimized.

The third justification for implementation of the 25th Amendment provides a means of temporarily or permanently turning over control of the government to the vice president in the event of the incapacity of the president. While there was some discussion of such a need in the wake of President Woodrow Wilson’s 1919 stroke, the contemporary impetus for the amendment can be traced to the health scares involving President Dwight Eisenhower in the 1950s and President John Kennedy’s 1963 assassination. Clearly, the intent of this portion of the amendment is to prevent the uncertainty and indecision that would ensue with a medically disabled chief executive. Since its passage, this component of the 25th Amendment has been invoked three times, though in each case to temporarily transfer power to the vice president at the request of the president.

According to news reports, Trump White House officials have discussed invoking the 25th Amendment on several occasions. Additionally, House Speaker Nancy Pelosi and others have advocated for use of this tool to remove President Trump for inciting the crowd, which then burst into the Capitol, occupied the House and Senate floors, stamped through offices, stole artifacts and damaged the People’s House.

Truth be told, removing the chief executive by the latter means would be harder than impeachment, since the 25th Amendment requires approval of both chambers by a two-thirds vote. Further, while there is no time frame for the impeachment process, there are several deadlines for action specified in the amendment. Finally, if Congress permits the White House to activate the amendment for nonemergency situations, it will dilute the importance of real crises involving the president.

If Congress wants to take decisive and appropriate action in response to President Trump’s flagrant violations of tradition, law and decency, they should pursue the impeachment route again despite the short time remaining in Trump’s term. A lesser penalty would be a bipartisan and bicameral censure. Of course, Congress also has short-term tools such as budget powers to constrain Trump in the waning days of his presidency.

Let’s reserve use of the 25th Amendment for how it was intended and not politicize it.

Dr. Samuel B. Hoff is George Washington Distinguished Professor Emeritus of history and political science at Delaware State University. He has taught and published extensively on constitutional law issues.