A New "Trump Precedent" Under the 25th Amendment?

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tags: Donald Trump, 25th Amendment

Devan Charles Lindey is a PhD Candidate in History at Purdue University.




The storming of the Capitol Building on January 6th by a pro-Trump mob forced a lockdown of the Congress as Capitol police and other authorities cleared the area. Almost immediately, legislators, including House Speaker Pelosi, demanded Vice President Pence invoke the 25th Amendment and seize control from President Trump. The Amendment was passed, after all, to give power to the Vice President if the President was unable to carry out his or her duties. But how does this current situation compare historically to other incidents that provided the impetus for passing the 25th Amendment?

Article II, Section 1, Clause 6 of the Constitution reads, “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President ....” A measure of ambiguity exists in this initial drafting by the Founding Fathers as to what constitutes inability, and how it might be determined. Additionally, the Founders were vague whether the vice president becomes the acting president or solely assumed the powers and duties of the presidency. These very ambiguities were eventually addressed by the passing of the 25th Amendment, but not before creating several difficulties throughout our history.

William Henry Harrison was the first president of the United States to die while in office. As a result, Vice President John Tyler succeeded him, initially receiving the title of “Vice President Acting President.” Vice President Tyler proved more ambitious though, as he moved into the White House and assumed full presidential power after having himself sworn in, which included giving an Inaugural Address on April 9, 1841 in which he outlined his policies as president. Those who opposed Tyler’s methods of assuming the presidency referred to him as “His Accidency,” a slight against Tyler showing he only gained that position given the death of his predecessor. Despite the cabinet asserting they should review Tyler’s decisions and that other members saw him only as an acting president, he stuck to his position, setting what some have called the “Tyler Precedent” until the amending of the Constitution in 1967.

Numerous other close calls occurred before 1967, including President Woodrow Wilson’s series of strokes. After suffering a more serious stroke in 1919, Wilson would never recover. However, his wife Edith and his doctor Cary Grayson kept his condition secret from Congress and the public. Though the Cabinet suggested a takeover by the vice president, by the time his condition became public knowledge only a few months remained in his presidency. As a result, the United States operated without a “competent” leader during this time.

Similarly, Dwight D. Eisenhower suffered a heart attack during his presidency. He also required emergency surgery in July of 1956. Before these events though, Eisenhower attempted to clarify procedures in the event he became incapacitated. Though it had no legal authority, he had Attorney General Herbert Brownell Jr. draft an agreement which Vice President Richard Nixon then signed. Each of the times Eisenhower was unable to perform his duties, Nixon presided over Cabinet meetings with the aides of Eisenhower. As such, the executive branch continued its function, giving the public the sense that the situation was under control. In these scenarios though, Nixon never claimed to be president or acting president. His time would come later.

The need for more direct clarification became apparent with the assassination of President Kennedy as the general health of Vice President Johnson was subject to question. That same year, Senator Kenneth Keating of New York proposed an amendment based upon an earlier recommendation from the American Bar Association in 1960. This amendment became known as the Keating-Kefauver proposal, named after Keating and Tennessee senator Estes Kefauver. Some concerns arose as Senators pointed out that Congress might neglect to enact the necessary legislation or abuse the authority given in the proposed amendment. The text read in part, “The commencement and termination of any inability shall be determined by such method as Congress shall by law provide.” Congress would not pass this amendment given their fears. Two years later though under the Bayh-Celler proposal, named in part for Senator Birch Bayh of Title IX fame and Emanuel Celler, the Chairman of the House Judiciary Committee, a new amendment appeared. It differed from the Keating-Kefauver proposal by providing for filling the vacancy of the vice-presidential office prior to the next election, and defining a process by which presidential disability would be determined. The American Bar association as well as President Johnson endorsed the amendment. After ironing out some differences between the two versions signed in the House and Senate, the final version was submitted to the states for ratification on July 6, 1965.

The 25th Amendment served as a safeguard to fill vacancies in various scenarios, some not so kind. Spiro Agnew was replaced by Gerald Ford as Vice President after Agnew resigned over scandal and charges of political corruption. Nixon faced the same fate as he resigned in the wake of the Watergate Scandal, which forced his appointed Vice President Gerald Ford to fill the vacancy of the Presidency and nominate Nelson Rockefeller as vice president. Health issues still compelled some presidents to invoke sections as well. Ronald Reagan used the amendment while he underwent surgery for colon cancer to transfer power to Vice President George H.W. Bush. Similarly, President George W. Bush underwent anesthesia for two separate colonoscopies on June 29, 2002 and in 2007. He invoked Section 3 to make Vice President Dick Cheney the acting president.

Section 4 of the Amendment allows the vice president and a majority body of Congress to declare a president unable to perform his duties, thus making the vice president the acting president. The Reagan administration almost used Section 4, going as far as to draft the necessary paperwork when Reagan was shot on March 30, 1981. The papers were never signed though. Later in 1987, perhaps with signs of Alzheimer’s setting in, members of his staff again considered removing him from office. His Chief of Staff Howard Baker disagreed and took no action though.

Even at an earlier point in Donald Trump’s presidency, some discussed the possibility of using the 25th Amendment to remove him from office. However, the events of January 6th have heightened these calls in the last days of his presidency. History shows that Trump’s current position varies from prior cases in which legislators invoked the 25th Amendment. It is Section 4 of the Amendment which reads in part that the Vice President along with a majority of either “principal officers of the executive departments or of such other body as Congress may by law provide” in a 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.” His health, at least physically, appears to be of no concern. Yet, his instigation of mob violence resulting in death at the Capitol Building raises concerns about his ability, if not worthiness, to serve. Members of Congress as well as everyday constituents have taken to labeling his behavior as seditious, treasonous, and as calling for insurrection; a drastic difference from the first peaceful transfer of power between political parties in 1800. This does not account for members of the House and Senate that have supported his baseless claims. Though able to discharge his powers and duties, the quality of his actions and unreliable attention to his duties may serve as grounds for removal. Invoking the 25th Amendment now may set a new “Trump Precedent.”