News

After the US Capitol Attack, Wondering How the 25th Amendment Works?

January 8, 2021 2103
Khizr Khan holds up copy of US Constitution
Khizr Khan holds up his copy of US Constitution and offers to loan it to then-candidate Donald Trump. (Image: Still from PBS NewsHour)

A day after President Donald Trump incited supporters to attack the U.S. Capitol, Democratic Sen. Chuck Schumer called on Vice President Mike Pence to invoke the 25th Amendment and remove Trump from office, saying, “This president should not hold office one day longer.”

The 25th Amendment, ratified by the states in 1967, declares that upon the removal, resignation or death of the president, the vice president assumes the presidency.

The Conversation logo
This article by Stephanie Newbold originally appeared on The Conversation, a Social Science Space partner site, under the title “How does the 25th Amendment work, and can it be used to remove Trump from office after US Capitol Attack?”

Commonly referred to as the Disability Clause, this constitutional provision also specifies that if the president is unable to perform the functions of his office, the vice president will serve as acting president.

If the president is unable to determine his own decision-making capacity, it is possible – though this is an untested area of law – that the vice president, independently or in consultation with the Cabinet, would determine if he himself assumes the role of acting president.

Removal, resignation or death

The 25th Amendment has been invoked only a few times in history.

In 2002 and 2007, President George W. Bush invoked the Disability Clause prior to scheduled colonoscopy procedures that required anesthesia and sedation. During this limited time, Vice President Dick Cheney became acting president.

But there is no precedent for the type of situation currently facing the United States. Trump long refused to concede his loss in the 2020 presidential election and encouraged a mob who share his belief that the vote was “rigged” to attack Washington, D.C. On January 7, Trump issued a brief statement promising an “orderly transition” on January 20 but pledging to “continue our fight.”

The 25th Amendment contains no precise legal language that expressly outlines what the procedural processes should be if the president cannot determine his own fitness for office. Its lack of specificity about such a situation means that a potential constitutional crisis could result if it is invoked to remove an unfit president who is unwilling to give up power.

Line of succession

Should the president be incapacitated in office, there is legislation that clarifies the line of succession.

The 1886 Succession Act made members of the president’s Cabinet direct successors if the vice president could not serve.

Upon assuming the presidency in 1945 after President Franklin Roosevelt’s death, Harry Truman requested Congress to amend the 1886 Succession Act to provide greater clarification of succession protocol. Truman wanted that succession to place the speaker of the house second in line after the vice president. After several years of negotiation, both houses of Congress agreed to this revision and passed the Presidential Succession Act in 1947.

The legislation specified that the line of succession begins with the vice president and is followed by the speaker of the House of Representatives, the president pro tempore of the Senate, the secretary of the U.S. Department of State, the secretary of the U.S. Department of the Treasury and the remaining secretaries of Cabinet departments in the order of when they were established as executive branch agencies.

Neither the Succession Act nor the 25th Amendment has ever been invoked for longer than a few hours. There are nearly two weeks left in Trump’s term.

Stephanie Newbold is an associate professor in the School of Public Affairs and Administration at Rutgers University–Newark. She specializes in the intellectual history of public administration, democratic-constitutionalism, and the intersection between the American Constitution and the administrative state.

View all posts by Stephanie Newbold

Related Articles

Why Might RFK Jr Be Good for US Health Care?
Public Policy
December 3, 2024

Why Might RFK Jr Be Good for US Health Care?

Read Now
Joshua Greene on Effective Charities
Social Science Bites
December 2, 2024

Joshua Greene on Effective Charities

Read Now
The End of Meaningful CSR?
Business and Management INK
November 22, 2024

The End of Meaningful CSR?

Read Now
Deciphering the Mystery of the Working-Class Voter: A View From Britain
Insights
November 14, 2024

Deciphering the Mystery of the Working-Class Voter: A View From Britain

Read Now
How Managers Can Enhance Trust

How Managers Can Enhance Trust

How to stimulate interpersonal trust in organizations? How can performance management contribute to trust? And, can other types of management control also […]

Read Now
Doing the Math on Equal Pay

Doing the Math on Equal Pay

In the UK, it’s November 20. In France, it’s today, November 8. For the EU, it’s November 15. It’s the day of […]

Read Now
Julia Ebner on Violent Extremism

Julia Ebner on Violent Extremism

As an investigative journalist, Julia Ebner had the freedom to do something she freely admits that as an academic (the hat she […]

Read Now
5 1 vote
Article Rating
Subscribe
Notify of
guest

This site uses Akismet to reduce spam. Learn how your comment data is processed.

0 Comments
Newest
Oldest Most Voted
Inline Feedbacks
View all comments