The 25th Amendment explained

In the wake of the Capitol riot last Wednesday, calls are growing for Mike Pence to invoke the 25th Amendment and strip President Trump of his presidential powers. 

However, in a letter to Nancy Pelosi Tuesday, Pence rejected the calls, explaining that he does not believe the removal of Trump is in the best interest of the country. 

“I do not believe that such a course of action is in the best interest of our Nation or consistent with our Constitution,” he wrote. He added that the 25th Amendment implies it is only to be used if a president is mentally incapable of carrying out his presidential duties, arguing it would “set a terrible precedent” to remove the president for bad action.

Most everyone in America has undoubtedly seen or heard something in the news about this in recent days, but the process is rarely explained. 

So, what is the 25th amendment? 

The 25th Amendment, proposed by Congress and ratified by the states following President John F. Kennedy’s assassination, provides procedures for replacing the president or vice president in the event of death, removal, resignation or incapacitation. 

The first three sections of the Amendment discuss on what would happen if a president resigns, dies or becomes ill or temporarily incapacitated – the line of succession, if you will. 

Section four, however, provides a process for the vice president and majority of cabinet officials, to declare the president is “unable to discharge the powers and duties of his office.” This would place the vice president in the role of acting president, and if the president disputes the claim that he or she is unfit for duty, the process would require a two-thirds vote in both chambers of Congress. 

“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.” 

How would it be used in Trump’s case? 

The amendment, in Trump’s case, would unlikely succeed. 

If Pence were to invoke the 25th like many are calling him to do, he would write a letter to Nancy Pelosi and Chuck Grassley explaining that Trump is unfit to perform his duties. Then a majority of Cabinet members would have to sign the letter, but because three of Trump’s cabinet members resigned, this would provide added complications. 

When Grassley and Pelosi receive the letter, Pence would automatically assume office as acting president until January 20; Trump would not be “removed” from office, but he would have no presidential power.

Trump would have the opportunity to send his own letter to Grassley and Pelosi stating that he’s able to resume office, at which point he would automatically regain power. 

If Pence and Cabinet members wish to challenge the president, they would have four days to again write a letter to Grassley and Pelosi. During that time, Pence retains power. 

Yes, a lot of back and forth.

If they choose not to write a second letter, Trump regains presidential power. If they do, the vice president continues as acting president and the decision shifts to Congress, which would have 21 days to vote on who should have power. 

A two-thirds majority would be needed in each chamber. 

Because Trump is set to leave office in a week, this vote would have to move extremely quickly. 

In the meantime, Congress is working on its second impeachment of President Trump.

What makes the 25th Amendment so different from impeachment is that if Trump were to be forced from office under the 25th Amendment, he could still run for president again in 2024; however, if he were to be impeached and convicted, the Senate could vote to bar him from holding office.