New Delhi: The lower house of the US Congress, the House of Representatives, will take up a resolution to impeach Donald Trump for a second time during his presidency, unless Vice President Mike Pence and the cabinet invoke the 25th Amendment this week to remove him from office, Speaker Nancy Pelosi said Monday.
With the recent attack on the US Capitol by pro-Trump protesters, Pence is under pressure, along with the cabinet, to invoke the 25th Amendment and remove Trump before his term expires on 20 January.
While impeachment is invoked when there is an abuse of power, the 25th Amendment, specifically its Section 4, is called upon when a president is deemed incapable of doing the job because of an impairment. This is why it is also commonly referred to as the ‘Disability Clause’.
Section 4 can strip a president of his or her powers provisionally on the grounds that he or she is “unable to discharge the powers and duties of their office”, making the vice president the acting president. However, there are several ambiguities as to what happens if the president declares himself or herself able. Unlike the other three sections under the 25th Amendment, Section 4 has never been invoked in US history.
ThePrint looks at the ambiguities of this constitutional provision.
What is 25th Amendment and its other sections
Adopted in 1967, the 25th Amendment lays out provisions for presidential succession in case a sitting president dies, resigns, is removed from office, or is unable to fulfill her/his duties. The amendment came in response to the assassination of President John F. Kennedy on 22 November 1963.
There are four sections under the 25th Amendment. The first section states that if a president dies, is undergoing medical treatment, or is incapacitated, the vice president takes over as the president. If the president resigns, then the vice president assumes office permanently till the end of term.
The second section states that if the vice president’s office becomes vacant, a person nominated by the president, with a two-third majority in both Houses of Congress, shall be appointed.
The third section enables the president to declare herself or herself “unable to discharge the powers and duties of their office” in a letter addressed to the leaders of both Houses, currently Iowa Republican Chuck Grassley in the Senate and House Speaker Nancy Pelosi.
Ambiguities under Section 4 of 25th Amendment
Section 4 of the 25th Amendment states that if a president is incapable of declaring his or her incompetence, then the vice president, along with the cabinet, can write to leaders of both Houses, declaring the president incapable of carrying out his or her functions and duties. The president then ceases to have authority with immediate effect, and the vice president becomes the acting president.
However, the section also states that a president can write to the leaders of the House and the Senate saying that no such inability exists. The president shall resume his or her powers, unless the vice president and the cabinet write to the leaders of both Houses within four days restating the president’s inability. After this, the case goes to the US Congress for resolution and they must decide on the matter within 21 days via a two-third majority vote in both Houses.
There have, however, been conflicting interpretations of what the law states about the four-day waiting period that follows once a president declares herself or herself capable. According to Richard Kay, a constitutional law expert and a Wallace Stevens Professor of Law Emeritus at the University of Connecticut, the president retakes power immediately upon declaring himself able.
However, Brian C. Kalt, a legal scholar and professor of law at Michigan State University, has argued that the vice president remains the acting president during the four-day period.
In addition, if the vice president and the cabinet re-declare the president’s inability, the vice president remains in power as the Congress deliberates the dispute. Kalt also pointed out a potential “hazard” if the president immediately retakes power. “The president could attempt to fire the Cabinet, to prevent it from re-declaring his inability and sending the case to Congress.”
Moreover, there is no clarity on whether the vice president and the cabinet can voluntarily transfer power back to the president in less than four days.