Back in Trump 1.0, I took a deep dive on section 4 of the 25th amendment because everyone was abuzz to oust Trump with it. Today, I see an uptick in references again in social media, so it felt time to refresh memories on how impossible it is.
Messy
Section 4 of 25th amendment is a mess—letters, counter-letters, congressional action all on strict yet vague timetables. And the vice-president, majority of the cabinet plus two-thirds of Congress would need to agree on an ouster. Let us walk through it quickly.
Step 1
“Whenever the Vice President and a majority of either the principal officers of the executive departments . . . 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.”
So it would take J.D. Vance AND a majority (8 out of 15) executive department cabinet officials to sign Declaration #1 and begin the process. An unlikely lift considering the sycophantic weight of such Secretaries as serial animal killer Kristi Noem, Warm Cookies Doug Burgum and A1 Sauce Linda E. McMahon. But assume Vance and enough cabinet members move forward, then Presto! J.D. Vance is Acting President.
+Step 2
Thereafter, when the President transmits to the President Pro Tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office
There is no waiting period after Declaration #1. Trump will immediately send his Declaration #2 stating no inability exists. Although there will be a question if a Truth Social post is an official transmit, but Trump will get something over. Vance is Acting President for four days still, or maybe an hour, it is not entirely clear.
Moving on.
Step 3
unless the Vice President and a majority of either the principal officers of the executive department . . . transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session.
Trump is President again starting 4 days after Declaration #2. Maybe. Again, something not entirely clear and Trump will be in court, so who knows? But there will likely be at least four days of Acting President Vance who, with the majority of principal officers (if they hang together), may move the disability decision to Congress with Declaration #3. Otherwise, game over and Trump is scalphunting.
Next up—Congress. That should work great.
Step 4
If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Now we have up to 21 days with an endless news cycle saturated with fights over who is president. The amendment is not entirely clear about who is president during this up-to-21-day window after Trump declares himself fit for office back in Step 2. It is, probably, still Acting President Vance until Congress decides. Probably. If not, Trump will fire everyone who signed Declaration #1 and appoint Acting Secretaries. Unconfirmed secretaries cannot sign any initial declaration, so without a majority of confirmed secretaries, no second bite at any new 25th Amendment apple. Congress can dispatch the matter earlier than 21 days, but who knows what a Congress will do. Also, the Supreme Court will likely be involved at some point during this entire time, so more fun.
Welcome to Hell.
Square peg, round hole
The 25th amendment was meant to be difficult, its drafters concerned about disloyal vice-presidents and other West Wing machinations. Congress saw this section as addressing a sudden coma or stroke, not Captain Queeg looking for strawberries.
There is no congressional legislation and little guidance from the DOJ Office of Legal Counsel describing the process and intent for Section 4. We only have the legislative history—hearing testimony, reports and floor debates—to piece together how Section 4 works. There is an excellent Yale Law and Policy Review piece written by Adam Gustafson that does, so follow along.
Conniving Vice Presidents and a Disenchanted Cabinets—beware
According to Gustafson, “Section 4 was the most vociferously debated section of the Amendment because its critics in Congress perceived in it the potential for abuse by a conniving Vice President and a disenchanted Cabinet.”
Congress set a high bar so Section 4 would not be a backdoor impeachment. For example:
From Senator Birch Bayh
"[T]he word 'inability' and the word 'unable' as used in [Section 4]... mean that [the President] is unable either to make or communicate his decisions as to his own competency to execute the powers and duties of his office."
From Senator Edward Kennedy
"total disability to perform the powers and duties of office…either physical or mental inability to make or communicate his decision regarding his capacity… or …physical or mental inability to exercise the powers and duties of his office."'
So, what of Trump is just crazy? Consider this:
From Senator Birch Bayh
"lt was made clear that unpopularity, incompetence, impeachable conduct, poor judgment, and laziness do not constitute an 'inability' within the meaning of [Section 4].
Being a delusional sociopathic kleptocrat who destroys our public investments and crashes the world economy is not an “inability. Might be an excess of ability actually, if you think about it. In short, If Trump can fight back in Congress, he is able to be President under the standards found in the legislative history. The only remedy is impeachment, and that is not happening anytime soon.
So, no Progressives, just no
Unless Trump strokes out, there is no Section 4 exit. While Vance would shiv him in a heartbeat if he saw a clear exit, cabinet secretaries all enjoy the thievery Trump makes possible, so the ball would never start rolling. And, even if they tried, a two-thirds vote of Congress ratifying the ouster of a walking, talking Trump is even less likely.
The 25th amendment is not an option, neither practically or legally. So just never speak of it again unless Trump himself stops speaking.
P.S. You may notice ellipses in the text. I took out “or of such other body as Congress may by law provide” for brevity and because Congress never tidied up this mess with any legislation.
For the infographic, I tried to grab a quick something with ChatGPT just to have a picture for the piece. Well, I found its limits. I tried Google’s Gemini, which i found doesn’t create images, but it did draft copy to create one. Which I put into Chat GPT as if it was a graphic designer Helped some, but still a pain—especially since I wanted quick. So, two vast AI systems yielded a few okay. not quite accurate, images. Which I kept as analogy to the mess the amendment is for dealing with Trump.
Like a JD Vance/ Peter Thiel Presudency would be any better
Thanks for the education.
I read the 25th once and was totally confused, so this is good.