No, Democrats—the 25th Amendment won’t save you from Donald Trump.
And just like that, Trump is dispatched to Trump Tower, or Mar-a-Lago, and Pence becomes acting president of the United States. Right?
Yes—assuming it’s a movie or a TV series or a Netflix or Amazon offering. This process, set down in Section 4 of the 25th Amendment to the Constitution, has been one of Hollywood’s favorite plot devices to spice up a political melodrama. As a real-life possibility, it requires a leap away from reality into a realm even Trump has delivered us; at least, not yet.
But it was the assassination of John F. Kennedy in 1963 that spotlighted the need for a fix—in stark, almost morbid terms. When Lyndon B. Johnson took the rostrum in the House of Representatives on Nov. 27 to reassure a shaken nation, viewers were treated to distinctly unsettling sight. There was Johnson, who had barely survived a 1955 heart attack. Behind him sat John McCormack, the speaker of the House—a frail, almost sepulchral 71-year-old who was next in line. Next to him was President Pro Temp Carl Hayden, an 88-year-old who appeared incapable of independent motion.
This was powerful visual evidence that the vice presidency should not be left vacant. Senator Birch Bayh and Rep. Emanuel Celler went to work drafting a constitutional amendment establishing a new process for selecting a veep.
But they realized there was a second issue to be dealt with. What if JFK had survived the shooting, but was left in a coma? What if LBJ had a second heart attack that left him comatose? What if he, or a future president, suffered a severe stroke, as Woodrow Wilson had in September 1919, leaving his wife Edith, in the words of one historian, to “shield Woodrow from interlopers and embark on a bedside government that essentially excluded Wilson’s staff, the Cabinet and the Congress.” And—most problematic—what if a president decided that he or she had recovered—but others in the administration thought otherwise?
To meet such a crisis, Section 4 of the 25th Amendment set up a mechanism. If a majority of the Cabinet and the vice president thought the president unable to perform his duties (yes, the amendment was gender-specific), they would so advise the congressional leaders. If the president disagreed, the two houses of Congress would convene within 48 hours and debate the issue over the next three weeks. Unless a two-thirds majority of both houses agreed that the president was indeed incapacitated—the same supermajority required to overturn a veto or to convict an impeached president in the Senate—he would resume the office.
In the 50 years since the 25th Amendment was ratified, it’s been used twice to fill a vice presidential vacancy: when Gerald Ford replaced the disgraced Spiro Agnew in October 1973, and when Nelson Rockefeller replaced Ford in 1974. And on six occasions, the president has invoked the 25th Amendment to (very temporarily) designate his veep as acting president, always during routine medical procedures like a colonoscopy. But it’s never been invoked when the president himself was non compos, most notably when Ronald Reagan was in surgery after the 1982 assassination attempt. When Howard Baker became Reagan’s chief of staff in 1987, according to the historian Edmund Morris, some of the president’s aides warned Baker that the 25th Amendment might be needed, given Reagan’s alleged mental fuzziness. When Baker and his staff met with Reagan, he showed no such signs, and the matter was dropped.
So where have the more melodramatic implications of the 25th Amendment seen the light of day? Just where melodrama is most appropriate: in fiction. For writers, the constitutionally plausible possibility of backroom machinations, double-and-triple-crosses, the powerful mix of high principle and naked ambition, has been irresistible for the better part of four decades.
William Safire, Nixon speechwriter and New York Times columnist, was the first to use the device in his 1977 novel, Full Disclosure. After President Sven Erikson is blinded in an assassination attempt, disloyal Treasury Secretary T. Roy Bannerman attempts to use the 25th Amendment to force him from office and replace him with a feckless vice president who would be Bannerman’s puppet. But in more recent times, as political settings have taken a prominent place on the screen, the venerable 25th has become almost as familiar as the Lincoln Memorial.
That was a nuanced, “one-off” use of the amendment. In the long-running series “24,” the 25th almost became a cast member. President David Palmer’s vice president and cabinet forced him from office because he would not retaliate against the alleged perpetrators of a terrorist plot. Then they learned the allegation was false, so the acting president turned the office back over to Palmer … who was laid low a few hours later by a biological attack, so the amendment was invoked again. The next president, John Keeler, was wounded when the bad guys shot up Air Force One, so the presidency fell to the traitorous Charles Logan. A few twists and turns later, David Palmer’s brother Wayne was elected president. Three months later, he was the victim of another terrorist attack, leaving him comatose. This plot line goes to Defcon 1—literally—when the acting veep orders a nuclear hit on another suspected terrorist site; a loyal Palmer aide then wakes Palmer up from his coma, who immediately tells Congress he’s fit to serve. The Cabinet deadlocks, undeadlocks, Palmer gets the post back … and then drops dead at a news conference.
So now let us return to Planet Earth. It is highly unlikely that we will see Reince Priebus locking Mike Pence in the Situation Room anytime soon, or that Nikki Haley and Rick Perry will be squaring off against each other for that crucial tie-breaking vote, or that Trump will decide, “you know, I need a couple of months off to get my groove back, so I’m invoking Section 4; best of luck, Mike.” The notion that Pence and a Cabinet majority will look at Trump’s next tweets or telephonic fulminations and decide he’s not fit for the job is beyond absurdity.
To see how just how unlikely such a move is, look at this recent piece by Jack Farrell in Politico Magazine about President Richard M. Nixon’s behavior in 1970. In the midst of a shooting war in Vietnam, and a Cold War on constant simmer, Nixon was often abusing alcohol and prescription drugs, leading to stretches of incoherence and irrationality. No one around him even raised the specter of invoking the 25th Amendment. And while the plot lines of “24” and “Scandal” are bizarre, they do illustrate why the 25th Amendment demands a supermajority of Congress if the president insists he’s able: It is insurance against a coup.
The mechanism, in short, is an “In Case of Emergency, Break Glass” provision. If a president showed up one morning unable to communicate, or curled up in a fugue state, the Constitution gives his vice president and Cabinet the power to avoid a crisis. Absent such a disaster, any thought of invoking it is best left to the writer’s room somewhere around Sunset and Vine.