Ask Jordan: What do the midterm election results mean for the 25th Amendment?

“When Democrats control Congress, will there be a better chance of invoking Section 4 of the 25th Amendment against Trump?” — David

Hi David,

Better than with a GOP-controlled Congress? Sure.

But unless President Donald Trump suffers a truly debilitating medical event, the likes of which he has not experienced thus far, I would not bank on that provision being used against him during his final two years in the White House, partly because it would still require Republican support.

And if you’re asking because you want a corrupt president removed from office, then impeachment is the more appropriate mechanism. It’s also easier (though still difficult) to carry out, as I’ll explain.

But first let’s address the 25th Amendment.

Adopted in the wake of President John F. Kennedy’s 1963 assassination, it deals with succession and disability.

Section 4 of the amendment has never been used before. It gives the vice president and either a majority of the president’s Cabinet or another body designated by Congress the power to declare that the president “is unable to discharge the powers and duties of his office.” If such a declaration were made against Trump, then Vice President JD Vance would “immediately assume the powers and duties of the office as Acting President.”

But wait, there’s more. Section 4 goes on to give the president the power then to tell Congress that he is able to serve. In that case, he regains the office unless the vice president and a majority of the Cabinet (or another body designated by Congress) say he’s unable to serve. If that happens, then it’s up to Congress to decide, requiring a two-thirds vote in both chambers to find that the president is “unable to discharge the powers and duties of his office.” If Congress makes that determination, then the vice president keeps acting as president; otherwise, the president resumes serving.

Although Democrats will have solid majorities in both chambers next year, they will not control two-thirds of either house. So even if this hypothetical Vance-backed scenario were to unfold, there would still need to be some buy-in from Republicans for it to stick.

That’s why I say that it would likely take clear incapacitation for Section 4 to be invoked — as opposed to the president acting in ways that earn him seemingly simultaneous criticism for not being in control of his faculties while also intentionally being corrupt, criminal and the like. I think it would take a situation that, to the extent possible, rises above partisan calculations and requires the sort of immediate practical resolution the amendment appears designed to provide.

Impeachment, on the other hand, is not only the more natural mechanism for removing a corrupt or criminal president from office, it’s also easier to accomplish — if still difficult, by constitutional design. It requires a simple majority of the House of Representatives to impeach and two-thirds of the Senate to convict. Trump was impeached twice in his first term and acquitted both times.

In the forthcoming Congress, Democrats will have a majority of the House, but they won’t have two-thirds of the Senate. They will be equipped to bring any impeachment they want. But unless they have a degree of GOP support in the Senate, they run into the same math problem that kept Trump in office during his first term and that effectively cleared the way for him to run again. I don’t want to prejudge whatever new scenario we might face over the next two years, or to downplay the situation we’re in, but those are the rules and the numbers in play.

Now, there’s another part of the 25th Amendment that’s also affected by the balance of congressional power. Section 2 says that when the vice presidency is vacant, the president nominates a new one who must be confirmed by a majority of both houses. If, for whatever reason, Vance vacates the vice presidency after the new Democratic-led Congress is seated, then that new majority would have a say in his replacement.

Unlike Section 4, Section 2 has been used twice before, both times decades ago in another scandal-filled administration. It was used to confirm Gerald Ford to the vice presidency in 1973 after the resignation of President Richard Nixon’s vice president, Spiro Agnew. When Nixon resigned the next year in the Watergate scandal, it was used to confirm Nelson Rockefeller as Ford’s vice president.

Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal newsletter.

The post Ask Jordan: What do the midterm election results mean for the 25th Amendment? appeared first on MS NOW.