The U.S. Constitution provides instructions for how to remove a President from office if they are “unable to discharge the powers and duties” of the office. This could be due to mental illness or serious health problems, but it’s also being discussed now as a possible way to remove power from President Trump as his unsupported claims of widespread election fraud incite violence.
Another option could be to impeach the President, who still holds office until noon on January 20, 2021. Impeachments generally take time and involve hearings, making them less useful in an emergency, although representative Ilhan Omar announced on January 6 that articles of impeachment were being drawn up. We have more on the process of impeachment here.
The 25th amendment includes provisions for removing a President quickly. It was ratified in 1967, after John F. Kennedy’s assassination. Until that point, the means of transferring power from a President to the Vice President were not specified; the Constitution just vaguely referred to the fact that a President could be removed for “Inability to discharge the Powers and Duties of said Office.”
When can the 25th amendment be invoked for an unfit president?
The answer: whenever the Vice President and a majority of the Cabinet are ready to do so. The amendment does not say when a President is unfit to serve. It doesn’t call out specific illnesses or treasonous acts or suggest tests of any sort. It just says this, under section 4:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
So if this were to play out today, the Vice President (Mike Pence) and a majority of the cabinet (these folks) would have to tell the Speaker (Nancy Pelosi) and the president pro tempore of the Senate (Chuck Grassley) that they think the President (Donald Trump) should be removed. As soon as the message was delivered, Pence would be President.
But there is another possibility: that “such other body.” Under the 25th amendment, Congress could pass a law creating a commission to evaluate whether the President is able to discharge the powers and duties of his office. Nancy Pelosi proposed that such a commission be formed last October, in the wake of the President’s COVID-19 diagnosis. (It was dismissed by some as a troll move since the bill was unlikely to be passed, but one could argue this is a sensible measure during a pandemic.)
This commission’s decision does not replace Congress’s final verdict, but rather the Veep’s and cabinet’s letter. That means this body can be used to get the ball rolling and force Congress to convene and vote.
What happens next?
At this point, the President can get their powers back just by saying that they are now able to carry out the duties of the office. This is pretty straightforward if power was temporarily transferred from the President being sick or having surgery. But what if the President says they’re fine, and they’re not? The rest of section 4 of the amendment sets out a timeline:
Within four days of the president saying they want their powers back, the Vice President and the majority of the cabinet can declare that they still believe the President is unfit.
Congress must convene within 48 hours, if it is not already in session.
Congress then has 21 days to decide who to believe.
To remove the President from office, both houses must vote, by a two-thirds majority, that the President is unable to discharge the duties of the office. If they can’t reach a decision within 21 days, the power goes back to the President.
If the President is removed, the Vice President takes over as President, and can appoint a new Vice President.
Will this actually ever happen?
So far, it never has. The process of removing a President was designed to be difficult so that parties would not be able to pick off each other’s officials willy-nilly. We are in uncharted territory in many ways, though, so time will tell.
This article was originally published in September 2018, was updated in October 2020 in the context of President Trump’s COVID-19 diagnosis, and updated again on January 7, 2021 in context of the insurrection at the Capitol.