The anonymous author of an Op-Ed article in The New York Times wrote this week that there were “early whispers” among President Trump’s advisers about trying to remove Mr. Trump from the presidency by invoking Section 4 of the 25th Amendment, which provides a process to declare that the president is unfit for office.
Such a move would be unprecedented, and the author of the essay writes that the discussions did not move forward because “no one wanted to precipitate a constitutional crisis.”
The amendment, adopted by the states 51 years ago, provides a complex, difficult process for the removal of a sitting president. Here is a brief history of the 25th Amendment and an explanation of how it operates.
What is the 25th Amendment?
The 25th Amendment to the Constitution is primarily designed to clarify the presidential order of succession.
The first section of the amendment explains what should happen if the president dies, resigns or is removed from office: The vice president becomes president immediately.
The second section makes it clear that when there is “a vacancy in the office of vice president,” the president shall nominate a replacement, who will take office once he or she is confirmed by majorities in both houses of Congress.
The third section allows the president to temporarily delegate his responsibilities to the vice president, who then operates as acting president until the president informs congressional leaders that he is able to resume his duties.
The fourth section provides a multistep process for the vice president and a majority of the officials who lead executive agencies — commonly thought of as the cabinet — to declare that the president is “unable to discharge the powers and duties of his office.” That process ultimately requires a two-thirds vote of both houses of Congress.
How did the 25th Amendment come about?
In the aftermath of John F. Kennedy’s assassination in 1963, there was some confusion about how to choose a new vice president after Lyndon B. Johnson became president. And there was concern about what might happen if Johnson fell ill or was incapacitated before his replacement was found. Congress formally proposed the 25th Amendment in the summer of 1965, and the amendment became part of the Constitution in February 1967, after 38 states ratified it. (Nine more states later ratified it. Three — Georgia, North Dakota and South Carolina — have never ratified it.)
Has it been used before?
Since its adoption in 1967, the first three sections of the 25th Amendment have been used several times.
The first and second sections were used in 1974, when Richard M. Nixon resigned the presidency and was replaced by Gerald Ford, his vice president. Mr. Ford subsequently nominated Nelson Rockefeller to be vice president, and Mr. Rockefeller was confirmed by the House and the Senate.
Section 3, which allows presidents to temporarily shift their powers and duties to the vice president, was used by Ronald Reagan in 1985 when he underwent a brief cancer surgery. President George W. Bush also invoked the 25th Amendment in 2002 when he underwent a brief medical procedure and transferred his duties to Vice President Dick Cheney for a few hours. Mr. Bush did the same thing again in 2007.
The fourth section of the 25th Amendment — the one contemplated by the anonymous author of the essay in The Times — has never been used.
How would it actually work, if invoked now?
The first step would be for Vice President Mike Pence and a majority of the cabinet to provide a written declaration to the president pro tempore of the Senate (currently Senator Orrin G. Hatch of Utah) and the speaker of the House (currently Representative Paul D. Ryan of Wisconsin) that Mr. Trump “is unable to discharge the powers and duties of his office.” That would immediately strip Mr. Trump of the powers of his office and make Mr. Pence the acting president.
But the 25th Amendment would allow Mr. Trump to immediately send a written declaration of his own to Mr. Hatch and Mr. Ryan saying that he is in fact able to perform his duties. That would immediately allow him to resume his duties, unless Mr. Pence and the cabinet send another declaration to the congressional leaders within four days restating their concerns. Mr. Pence would take over again as acting president.
That declaration would require Congress to assemble within 48 hours and to vote within 21 days. If two-thirds of members of both the House and the Senate agreed that Mr. Trump was unable to continue as president, he would be stripped permanently of the position, and Mr. Pence would become president. If the vote in Congress fell short, Mr. Trump would resume his duties.
Would that ever happen?
The authors of the 25th Amendment intended it to be a difficult process that would make it exceedingly rare. They succeeded.
To put it in context, it is even more difficult to remove a president under the 25th Amendment than it is under the impeachment process. A president can be impeached by a simple majority in the House and removed from office by a two-thirds vote in the Senate. Removal under the 25th Amendment requires a two-thirds vote in both chambers.