Another month has gone by with no medical breakthroughs offering hope to those afflicted with Trump Derangement Syndrome. That’s a shame, because two Yale law students have taken to the pages of Time Magazine with a plan which clearly demonstrates precisely how bad this mental disorder can get. Unhappy with the results of November’s election, Samuel Breidbart and Vinay Nayak believe they have discovered an infrequently discussed element of constitutional law which could allow for the removal of Donald Trump from office. They’re not talking about impeachment (a proposal which is going nowhere fast), but rather yet another trip into the intricacies of the 25th amendment.
In the recent past when such proposals have been offered, they centered around the main provisions of section 4 of the amendment. Unfortunately, as the authors freely admit, that plan would require the Vice President and a majority of the members of the Cabinet (all of whom were appointed by Trump himself) to pen a letter requesting his removal and send it to Congress. This is a dream which has roughly the same chance of success as the Jets winning the Super Bowl next year. But there is one other element of the amendment which is quite vague in its wording which the authors believe could offer some sort of remedy.
But there is another provision in the Amendment that has received much less popular attention — one that could allow Congress to play a role in removing the President. And no, it isn’t impeachment. Instead, a little-known provision in Section 4 empowers Congress to form its own body to evaluate the President’s fitness for office, eliminating the need for the Cabinet’s involvement in the process (emphasis ours):
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.
But what constitutional constraints are put on this power? Remarkably, there aren’t any. The framers of the 25th Amendment left the provision purposely vague, allowing Congress flexibility to decide on its specifics at a later date.
There is the key passage in the 25th amendment upon which the hopes of liberals now ride. “… or of such other body as Congress may by law provide.” It’s right there in the words of the Founders so clearly it’s a valid point of discussion.
There is one major sticking point in this brilliant scheme, however. In the more than two centuries during which Congress has had the opportunity to “provide” such an alternative body, they have opted not to do so. There is no extant committee, commission or panel provided under current law to take on the responsibility of evaluating the mental capacity of the Commander-In-Chief and provide recommendations regarding his continued fitness to serve. Clearly the power to create such a structure exists, but in order to launch into these uncharted waters, congressional Democrats would be starting from scratch.
In order to do it, someone would have to draft a bill calling for the creation of this commission. That bill would have to make it through committee (which would presumably be chaired by a Republican at this time) and then through a full vote in both the House and Senate. Even in some fanciful, fictional world where this might happen, there then comes the small matter of convincing President Trump to sign it into law. Let’s just say that we would be rightly dubious about the possibility of that happening. Having been vetoed, the Democrats would have to scrape up a massive number of votes to override the veto, thus creating the commission in question.
At that point, you would need to actually create the commission, find people willing to serve on it, call them to order and convince them to begin building a case claiming that the President of the United States is suffering from some mental malady which leaves him unfit to serve. By this point in the saga, am I the only one who is seeing this as less likely than the Starks of Winterfell showing up in Washington DC riding on the backs of dragons?
With all of that in mind, let’s examine what might be the better question of the day. Why did Time Magazine see fit to publish this essay in the first place? It was not introduced as a fictional piece, so clearly it was intended to be taken seriously. Was this yet another example of the editors at a major publication seeking to continue the running theme of the new president being somehow illegitimate or unqualified with a mind toward discrediting the entire administration? Food for thought, anyway.