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The recent opinion piece in the New York Times has two claims that I can't reconcile:

  1. Donald Trump is unfit to be president of the United States
  2. The constitutional crisis caused by invoking the 25th amendment would be worse than keeping him

Why would invoking the 25th amendment (section 4) cause a constitutional crisis?

  • The missing information that would support an answer for this question: what are the measures of fitness for president? If they aren't listed in the Constitution, do they have any weight? – Drunk Cynic Sep 6 '18 at 23:49
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    @DrunkCynic Why does that matter? If two thirds of the American government believe the president is unfit, they have the power to remove them, despite any definitions. – CJ Dennis Sep 6 '18 at 23:52
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    @DrunkCynic The amendment does make it pretty clear: a specified group of people say "he's not capable", then maybe the president says "yes I am", and then if they continue to disagree both chambers of congress decide the matter. In the tradition of most other Constitutional requirements of congress, I expect they get to decide the matter in whatever manner they so choose. – zibadawa timmy Sep 7 '18 at 0:13
  • @zibadawatimmy yes, and a good answer would need to reflect that. Don't think my comment puts forth the message I intended. – Drunk Cynic Sep 7 '18 at 0:18
  • @DrunkCynic Now that you mention that was your intent it does seem pretty clear. – zibadawa timmy Sep 7 '18 at 0:21
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A "constitutional crisis" is simply a situation which the Constitution does not explicitly cover, usually pitting two branches of government against each other. It's generally resolved by whoever can make the better case for their interpretation, which is very dependent on the details of the situation and the people involved.

As is often the case, FiveThirtyEight has a relevant article. In it, they break the relevant section of the 25th Amendment (Section 4) down into chunks and examine the potential problems with each. Quotes are the Amendment (with my emphasis), text is my summary and elaboration on the article:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, 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.

Congress has not explicitly created a body, so it falls on the "principal officers of the executive departments". This is not explicitly the Cabinet, but that's a pretty standard interpretation. No crisis here.

There could be a crisis around what "unable to discharge" actually means, but it's fairly safe to assume that - like "high crimes and misdemeanors" for impeachment - it's up to the body in question. But if the Cabinet's definition isn't broadly accepted, then you have the makings of a crisis.

Likewise, there could be a crisis around Congress' ability to create a new body that can declare the President unable - more on this later.

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 unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, 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.

There's one key hole in this section: The use of the word "unless" instead of "until". The President resumes the office unless the Cabinet does something they have four days to do. Is he President during those four days? Does he have any authority? Can he fire the entire Cabinet during that time? What if they don't act during that time?

So here's one potential Constitutional crisis: The President declares that he is fit, and fires the Cabinet members that signed onto removing him. They counter by saying that he doesn't have authority to fire them, since they haven't yet run out of time to respond. Crisis.

Bonus crisis if the non-fired portion of the Cabinet explicitly says "No, we think the President is fine". Now you have two potential bodies that can notify Congress of the continued inability of the President - the VP's Cabinet and the President's Cabinet. Does it take a majority of either half (with them assuming that the other seats are now vacant), or a majority of the whole thing?

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.

This has the same as before, except worse. Now there's up to twenty-one days where the President's status is in limbo. Who's running the country during that time? What if the VP-as-Acting-President takes actions which the President can't undo if he resumes office (pardons, firings, signing or vetoing legislation, etc)?

Additionally, since it takes a 2/3 majority of both houses to override a veto, and a 2/3 majority to create a body that can declare the president unable to carry out his office (as previously mentioned), then the supermajority of Congress and the VP can conspire together to bypass the rest of this amendment and force the President out. As before, if this is not seen as legitimate, crisis. (Even though the bar is higher to do this than for an impeachment, it doesn't require the excuse of a "high crime [or] misdemeanor" to remove an "unfit"-but-not-"criminal" President.)


TL;DR

None of this is to say that a crisis will happen if Section 4 of the 25th Amendment is invoked. Just that there's a lot of potential ambiguity where a conflict of interpretations will become one.

  • In the last paragraph before tl;dr you said "can conspire together". The VP is unnecessary in this situation. If two-thirds of both houses think he needs to be removed, the House can certainly come up with impeachment charges and the Senate can convict. The grounds for impeachment as listed in the Constitution are very vague. – David Thornley Sep 7 '18 at 15:29
  • @DavidThornley - That's very true. I added another sentence to explain why Congress could (theoretically) choose to follow this path instead of a standard impeachment, but it's certainly a huge stretch. But then, the VP conspiring with Congress against the President is also a huge stretch. – Bobson Sep 7 '18 at 15:51
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The whole point of the 25th Amendment is to provide clear direction on what to do in case the president becomes incapacitated. It is not designed to be an end-run around the impeachment process on the occasion that the President is a total asshat. That's why it's so easy to invoke if the president is unconscious or dead, but extremely difficult to invoke if he's still sitting upright in his chair and capable of putting up a fight.

Although I hate the phrase "constitutional crisis", invoking (or attempting to invoke) the 25th Amendment on a sitting President would be nothing short of an American coup d'etat -- which isn't supposed to happen in a democracy. It simply does not have any precedent in the modern free world. That's what the person who wrote this op-ed was referring to.

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    invoking (or attempting to invoke) the 25th Amendment on a sitting President would be nothing short of an American coup d'etat. It could be expressed that way if it was invoked for a purpose different for which it was created (for example, if it was to "impeach" a POTUS). But if there was invoked for the purpose it was created (i.e. the POTUS is effectively uncapable of performing his/her functions), qualifying it as "coup d'état" is wrong. – SJuan76 Sep 7 '18 at 7:17
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    "It simply does not have any precedent in the modern free world.": depends what you mean. Wikipedia lists numerous constitutional crises, a few of which happened in "the modern free world". In particular, the 1975 Australian constitutional crisis strikes me as particularly relevant, where the Governer-General (head of state) dismissed the Prime Minister (head of government) - which was within his powers to do, but went against established convention. – Steve Melnikoff Sep 7 '18 at 9:03
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    The 25th is designed to allow government to continue of the president becomes unable to fulfil the duties is the office. While that does include being mentally as well as physically unable, it starts to look like a bit of a violation of the intent if the president is just as capable (or incapable) as he was when he was elected and when he took office. There is no sudden great change that has rendered him unfit, so it looks like twisting the intent of the amendment to achieve "end-run around the impeachment process". – PhillS Sep 7 '18 at 9:48
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    Being mentally unfit is certainly uncharted, contentious territory, for sure. I'm not sure that the article's author's decision for lower level, un-elected staffers secretly sabotaging and circumventing the president from exercising his powers is somehow less of a Constitutional Crisis than using the 25th Amendment for someone where the argument is that they are not psychologically or emotionally fit for the duties of office, but that's not really directly relevant to Wes' answer, which gets a +1 for clearly stating a crucial viewpoint that is being considered. – PoloHoleSet Sep 7 '18 at 17:44
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    The NYT editorial purports to be written by members of the the current administration that think Trump is incapable of discharging his duties as president and are taking (ongoing) action to delay, ignore, and outright contradict his expressed wishes and instructions. Saying this is just people reacting to Trump being a "total asshat" is, to put it mildly, a dramatic mischaracterization. I agree that impeachment is the proper constitutional remedy, but I'd argue that the current state (of this "shadow administration" actually running things) is the actual "constitutional crisis". – BradC Sep 7 '18 at 20:09
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Key here is to understand the phrase "constitutional crisis". While it is true that the 25th amendment has been invoked previously, it's only occasion has been approval of the sitting president. As far as I can tell Section 4 of the amendment has never been invoked. So, does it create a constitutional crisis when a section of the constitution is applied without any precedent? I leave that to your opinions.

Otherwise the Section that provides for the succession due to a claim of "unable to discharge" is pretty clear as to process:

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, 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.

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 unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, 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. 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.[3]

So if one considers having the Congress adjudicates who should holding the Presidency, while the world waits... if one considers that situation, albeit a temporary one, then that could (in some folks minds) be considered a crisis.

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    Also, if you have decided not to act, it sounds better if you say that it is "to avoid a constitutional crisis" than "because a lot of people would be against it and I would become a very controversial figure". – SJuan76 Sep 7 '18 at 8:48
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    The process is pretty clear, but the actual details have a lot of ambiguity. I cover it in my answer, but the very short form is "Who is in charge while all this is playing out?" – Bobson Sep 7 '18 at 20:58
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    Using a power provided for in the constitution for a purpose that is not clearly the intended purpose of that power could easily be a constitutional crisis. If the basis for declaring the president "unable to discharge the powers and duties of his office" is that his judgment is poor, that would be highly questionable. – phoog Sep 7 '18 at 23:07
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Let's be absolutely clear; as other answers have discussed, using the 25th Amendment to remove a president deemed somehow mentally unfit to discharge the duties of his office (as opposed to being physically incapacitated) would be unprecedented, difficult, divisive, and would be viewed as a "crisis" in a myriad of ways.

But the 25th Amendment, by definition, is a constitutional remedy. A "shadow administration" smiling and nodding to Trump's face but ignoring, delaying, and/or countermanding his orders behind his back is not.

I agree with this article at the Atlantic, saying that the current situation is the actual constitutional crisis:

Impeachment is a constitutional mechanism. The Twenty-Fifth Amendment is a constitutional mechanism. Mass resignations followed by voluntary testimony to congressional committees are a constitutional mechanism. Overt defiance of presidential authority by the president’s own appointees—now that’s a constitutional crisis.

If the president’s closest advisers believe that he is morally and intellectually unfit for his high office, they have a duty to do their utmost to remove him from it, by the lawful means at hand.

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    I have no idea why that article would consider defiance by an appointee a constitutional crisis. The constitution is not involved at all. Everyone the President appoints (except SCOTUS nominees and a replacement VP) serves at his pleasure - if he doesn't like what they're doing, he can fire them. So by not doing so, either the President is unaware or tacitly permitting it. – Bobson Sep 7 '18 at 21:01
  • @Bobson Precisely because it is a remedy outside the bounds of what the constitution allows. The President isn't running the Executive Branch, I'm not sure what could more obviously counter to what the constitution intended. – BradC Sep 7 '18 at 21:09
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    I think the article is using a different definition of "constitutional crisis" than its typical usage in political discourse. Typically, it's an issue which the constitution (or equivalent) can't resolve, not one that's entirely orthogonal to it. The constitution also doesn't address traffic laws, but that doesn't mean that an problem with them is a constitutional crisis. Here it provides a very clear remedy: The President can fire them, because he's head of the branch. – Bobson Sep 7 '18 at 21:19
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    @Bobson Perhaps it is, as you suggest, a slightly different usage of the term, but no less valid, in my opinion. But again, describing this as mere "appointee defiance" is hugely underselling it; what we're talking about here amounts to an unknown group of un-elected people conspiring to run the executive branch according to their own (unknown to us) values and ideas, in clear contradiction to the roles of the President as laid out in the constitution. – BradC Sep 7 '18 at 21:41
  • I wouldn't call their values "unknown" - they're laid out pretty clearly in the NY times article and (if what it says can be believed) in the policies to come out of the White House that aren't explicitly issued by Trump. That said, I'm with you in that it's inappropriate of administration officials to sabotage their president's agenda like this. We'll just have to differ about whether it counts as a "constitutional crisis", though. – Bobson Sep 9 '18 at 0:41
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The general definition of a constitutional crisis is a legislative or legal situation that the current constitution cannot address.

The NYT is misapplying the term 'constitutional crisis'. The 25th is fairly straightforward. It was devised in the wake of the death of Kennedy, when people raised the issue of what to do if the president were shot but had lived. (as was the case with Reagan in 1981, but he recovered so quickly that invocation of the 25th wasn't necessary)

The 25th amendment is to cover situations when the current president is incapacitated, and it requires the VP and the majority of the executive cabinet to make the declaration. It also provides that the president can resume the office when the president declares that he/she is ready to resume the office.

Presumably, this would include mental incapacitation as well. However, if a newspaper disagreeing with a president constituted mental illness on the part of the president, the average term of a president would be about five minutes.

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    It is not a newspaper disagreeing with a president but (according to the anonymous source who is claimed to be part of the WH staff) the members of the cabinet thinking that Donald Trump cannot be trusted to manage the country. – SJuan76 Sep 7 '18 at 8:27
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    Furthermore, the NYT did not use the term "constitutional crisis" unless you think the NYT is lying about the authorship of the piece. – phoog Sep 7 '18 at 23:04
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It is not clear how "constitutional crisis" could ensue by invocation of Section 4 of the 25th Amendment to the Constitution of the United States. The requirement to remove a sitting President of the United States from Office is not trivial, see The Reagan Library Education Blog The 25th Amendment: Section 4 and March 30, 1981

  • Then both Houses of Congress would have to meet and decide if the President was ready to come back. In this case a very large two-thirds supermajority of each House would have to be against the President coming back for the Vice President to stay in power against the President’s wishes. Two-thirds supermajority means 67 of the 100 Senators and 290 of the 435 Representatives would have to vote against the President resuming powers. If it was 66 Senators and 305 Representatives or even 100 Senators but only 289 Representatives, that would not be enough to overturn the President’s right to resume power and the President would be back in charge.
  • In the end it is very hard to prevent the President from resuming power. It takes agreement from all of the following: the Vice President, the Cabinet, and a supermajority of both Houses of Congress.
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    Constitutional crisis can ensue by invocation of a constitutional mechanism if the invocation is thought to be improper. – phoog Sep 7 '18 at 23:05

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