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Will the 25th Amendment Save America From Trump? Not as Written

How can we trigger protections if we don’t know when they should be triggered?
Image: President Elect Trump
Raising the stakes. Drew Angerer / Getty Images file

As Robert Mueller’s investigators begin to hand down indictments and President Donald Trump’s tweets grow ever-more frustrated, the 25th Amendment has once again become a topic of much speculation. But it will take more than a few viral thought pieces — or outspoken Congressional appeals — to make this liberal pipe dream a reality. This is because, like so many other Constitutional provisions, it is vague and broad. Presidential watchdogs can bark all they way, but without clarity, their bark will always be worse than their bite.

It doesn’t have to be this way, however: This is the moment to give the 25th Amendment teeth.

Briefly, the 25th Amendment allows the Vice President and a majority of the Cabinet to tell the President pro tempore of the Senate (Orrin Hatch) and the Speaker of the House (Paul Ryan) in writing that the President is “unable to discharge the powers and duties of his office.” If the President doesn’t agree, he has the option of telling the President pro tempore of the Senate and the Speaker of the House, “not so fast, I’m fine.”

At that point, Congress acts as a tie-breaker and determines within 21 days whether or not the President is indeed unfit. If the President loses this review, he can continue to appeal the decision, forcing Congress to make the same determination over and over again. If this process sounds messy, that’s because it is.

For those who believe Trump has already proven himself “unable to discharge the powers and duties of his office,” I hear you. But the legal standard in question is vague and has never been tested. Scholars and politicians have little guidance at the exact moment that they need it most.

In the absence of such guidance, some have worried that if we invoke the 25th Amendment based on mental illness, we could be setting a dangerous precedent. Put another way, people fear the 25th Amendment will become a partisan sword. Luckily, these fears are overblown. Let us remember who invokes the 25th Amendment — the Vice President and the Cabinet, both individuals hand-picked by the President. This is unlikely to be a group eager to usher the President out the door. And if, despite historical evidence to the contrary, the President's Cabinet does go rogue, Congress can still act as a safety valve.

Presidential watchdogs can bark all they way, but without clarity, their bark will always be worse than their bite.

As it is currently written, the 25th Amendment's biggest problem isn't partisan overreach. The real question is who or whom the Vice President and the Cabinet should look to and rely upon for a determination of the President’s fitness. Or, in the event that Congress must make a determination about fitness, who or whom they should look to for guidance.

Tempting as it may be, the “I’ll know it when I see it” standard isn't going to work here. As we have seen over and over again during the past few years, the one thing that seems guaranteed in U.S. politics today is that about half the country will disagree with the other half. Instead, we need to set up a committee of experts. This country is not short on mental health professionals. And because doctors, like economists, may not all agree, any panel should be as diverse as possible. That way, the final assessment is not made by any one individual.

Bottom line: It is time to put some meat on the bones of the 25th Amendment. Congress should enact a statute that provides specific guidelines and guidance in the event that the 25th Amendment is invoked due to mental incapacity. This statute would instruct Congress on how to pick a panel of experts, how many should participate, who should pick them, and what criteria they should apply. It could even dictate that the President be forced to submit to a psychological evaluation.

Now is the time to figure out how and under what circumstances we can use the 25th Amendment in the case of mental incapacity. While creating layers of bureaucracy should not be the fallback solution when interpreting broad Constitutional provisions, measures like the 25th Amendment are useless without clarity. How can we trigger protections if we don’t know when or under what circumstances they should be triggered?

The determination of whether America’s nation’s chief executive has reached the threshold outlined by the 25th Amendment should be one based on science and medical evidence, not politics. The best way to guarantee that happens is by ensuring that medical and psychiatric experts play a role in the process.

Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and is the president of the Los Angeles Ethics Commission.