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Given that Donald Trump has not been willing to concede, and appears willing to actively impair the process of an orderly transition of power, would the 25th amendment be a viable remedy?

  • Could it be justified by the president's actions/inactions under the circumstances?
  • Could it be invoked quickly enough to prevent an orderly transition of power from going off the rails?
  • Would it depend on the co-operation of key individuals still loyal to the current president?
  • Would it make any difference anyway? Would it only shift powers from the president to someone else still loyal to him and willing to do his bidding?
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    a concession is a custom/convention and has no legal weight
    – eques
    Nov 10, 2020 at 13:42
  • @eques Yes, but it is an indicator of his state of mind. Even though it is no more than custom, it is what the GSA has apparently chosen as a trigger.
    – Anthony X
    Nov 10, 2020 at 22:58
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    The answers here politics.stackexchange.com/questions/59980/… outline that a) it "appears to be related" to concession, but the GSA itself has discretion (no sooner than day after general election through no later than 30 days after being sworn-in).
    – eques
    Nov 11, 2020 at 13:53
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    Not being willing to concede says zilch about his ability to be an effective president for the remainder of his elected term.
    – eques
    Nov 11, 2020 at 13:54

1 Answer 1

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Could it be justified by the president's actions/inactions under the circumstances?

Right now? Heck no. The President is filing lawsuits to challenge the result, as well as making speeches about how the election was "stolen." The General Services Administration has also refused to cooperate with the Biden transition team, apparently on the grounds that the outcome of the election is still being litigated. All of that is highly irregular, but it is not extra-legal. Compare and contrast the 2000 election.

Section 4 of the 25th amendment was meant to cover situations where (for example) the President declares war on France because they are conspiring with the lizard people from Mars. We're nowhere near that threshold.

Could it be invoked quickly enough to prevent an orderly transition of power from going off the rails?

Yes. The 25th amendment takes effect immediately, and its wording implies that the President can only regain his powers after going through the whole process. This can take up to 25 calendar days in total (the VP must renew his claim of Presidential incapacity within 4 days after President challenges it, then Congress must vote in favor of the VP by a 2/3 majority within 21 days; if Congress does not so vote, there is no "fast-track" process to return the powers and duties early).

Would it depend on the co-operation of key individuals still loyal to the current president?

Probably. It requires Mike Pence plus a majority of the Cabinet. Most of those individuals are going to be loyal to President Trump.

Would it make any difference anyway? Would it only shift powers from the president to someone else still loyal to him and willing to do his bidding?

It would transfer power to Mike Pence, who is currently the Vice President. Trump selected Pence as his running mate in 2016, but Trump does not have the ability to fire or otherwise remove Pence. In practice, Pence has been quietly loyal to the President, but has avoided specifically repeating some of his more outlandish claims.

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  • > apparently on the grounds that the outcome of the election is still being litigated. All of that is highly irregular, but it is not extra-legal. Irregular often has the connotation of nefarious, etc rather than unprecedented. Note however when the GSA recognized a winner in the litigated 2000 election. It wasn't within a week of the election
    – eques
    Nov 10, 2020 at 13:42
  • Can't the 25th be invoked voluntarily by the President himself as well? There's a famous story arc from The West Wing about it.
    – Mast
    Nov 10, 2020 at 14:12
  • @Mast: Yes, it can. But Trump is not going to do that. Even if he did, it would not really serve as a "remedy" within the meaning that this question contemplates.
    – Kevin
    Nov 10, 2020 at 16:13
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    @Mast: Edited to clarify the section we're talking about.
    – Kevin
    Nov 10, 2020 at 18:32
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    @yms: It is far too early to tell. The current situation has no precedent, certainly in modern times at least.
    – Kevin
    Jan 7, 2021 at 1:24

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