CLEVELAND — Abounding bodies (maybe including U.S. Deputy Attorney General Rod Rosenstein) accept talked about invoking the Constitution’s 25th Alteration to aish Donald Trump from office. Few assume to accept apprehend the amendment, however.
The best important aftereffect of the 25th Amendment, ratified in 1967, was to actualize a apparatus to ample the carnality admiral if that appointment opens up. In 1973, Gerald Ford was accepted as carnality admiral aback Spiro Agnew resigned, and the aing year, afterwards Ford affected the admiral on Richard Nixon’s departure, Nelson Rockefeller became carnality president. The action formed able-bodied both times.
The alteration additionally sets out means for the carnality admiral to become “acting president” in two situations. The aboriginal is aback the admiral himself sends a accounting acknowledgment to the admiral pro tem of the Senate and the Speaker of the House that “he is clumsy to acquittal the admiral and duties of his office.” That care to work, too. It’s the admiral saying, in effect, “I can’t do the job now, but I’ll be back.” The carnality admiral accomplish in, but the admiral reassumes the admiral and duties aback he notifies aldermanic leaders that he’s up to it.
The bulky allotment of the alteration — accordant to accepted political discussions — describes what’s declared to appear should others anticipate the admiral can’t accommodated his obligations, but he disagrees (or is aloof out of it). About every op-ed I’ve apprehend on the accountable says that if a majority of the chiffonier concludes that Admiral Donald Trump is bedridden and sends the adapted acknowledgment to Congress, the admiral is gone. But that’s not alike aing to what the alteration says.
To activate with, it’s “the Carnality Admiral and a majority of either the arch admiral of the controlling departments or such added anatomy as Congress may by law provide” who charge accomplish the declaration. If the carnality admiral abandon with the president, it doesn’t amount what anyone abroad thinks.
And what does “principal admiral of the controlling departments” mean? It should be bright that it’s not the cabinet; some chiffonier associates don’t arch any controlling administration — the U.S. agent to the United Nations, for example. And what’s an “executive department”? Abounding Washington agencies accept appropriate built-in statuses (the Federal Trade Commission, for example) — maybe executive, maybe not. Is the Secretary of the Army a arch administrator of an controlling administration for these purposes, alike admitting the Administration of the Army is allotment of the Administration of Defense? I’m not sure, and you shouldn’t be, either. It’s adamantine to actuate the majority of an general group.
Besides, putting computational problems aside, what’s a admiral activity to do if he gets wind — as he accordingly will — that some “principal officers” are revolting? He can’t blaze the carnality president, but he can blaze anybody else. Revolt over, at atomic temporarily.
Suppose (unrealistically) that, admitting those applied difficulties, the carnality admiral is called acting admiral beneath this procedure. The alteration provides that a briefly deposed admiral can booty accomplish to acknowledge “that no disability exists,” and resume the duties of the admiral — unless the acting admiral and a majority of arch admiral disagree and Congress, by a two-thirds vote of both houses, additionally disagrees. With those president-friendly rules in place, a deposed admiral is about absolutely activity to acknowledgment to ability if he wants to — unless the affliction is absolute (think Woodrow Wilson).
Finally, it’s account acquainted that in no case does the alteration advance to removing a antagonistic president. About continued there’s an acting president, the admiral doesn’t aloof go away. He charcoal president. He wouldn’t be able to do much, of course, but, at a minimum, he would absorb a annoyer pulpit. And he could gum up the authoritative works by always sending declarations to Congress that he’s not disabled.
The alteration wouldn’t assignment as Trump critics hope. Yes, ambiguity can be lessened. The alteration permits Congress to baptize a anatomy added than the arch admiral of the controlling departments to accomplish assorted determinations. That would be a aboriginal footfall appear clarity. But the requirements to accumulate an acting admiral in appointment for an continued period, if the admiral wants the job back, are so acrimonious that anybody care to balloon about application the alteration to abate Admiral Trump’s powers.
Erik M. Jensen is the Coleman P. Burke Professor Emeritus of Law at Case Western Reserve University.
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