25th Amendment is not likely to provide a practical solution

President Donald Trump's call for action for his supporters to assemble in Washington on Jan. 6 to save America and "stop the steal" spiraled out of control when his supporters violently stormed the Capitol waving Trump flags and regalia. His Dec. 19 tweet that the protest "will be wild" turned out to be shockingly and dangerously accurate. Five people are now dead.

These events, as well as other unhinged actions by Trump, have prompted renewed interest in the possible use of the 25th Amendment to the Constitution, which became law in 1967. It contains two sections dealing with the removal of the president for disability: Sections 3 and 4.

Section 3 creates a simple and straightforward method of dealing with the temporary inability of the president to perform the duties of the presidency. Trump could voluntarily declare that he is "unable to discharge the powers and duties of his office." In these circumstances, Vice President Mike Pence would become the acting president until Trump transmitted to Congress a written declaration to the contrary. Trump has not given any indication of interest in voluntarily giving up the power of the presidency. In fact, the opposite is true as he desperately attempts to cling to power.

Section 4 deals with the involuntary transfer of power to the vice president. It has never been used before. It applies when the vice president "and a majority of either the principal officers of the executive departments," or as otherwise provided by law, transmit to the speakers of the Senate and House their declaration "that the President is unable to discharge the powers and duties of his office." At this point, the "Vice President shall immediately" become the "Acting President."

Section 4 allows the president to challenge the disability determination by giving the speakers a written declaration that no disability exists, which is likely. Trump would then resume the powers and duties of president, unless within four days Pence and the cabinet disagree, in which case Congress decides the issue. Given that less than two weeks remain in Trump's term of office, this back-and-forth process is likely to be too cumbersome to be administratively effective.

Two additional problems exist with using Section 4. First, the "principal officers" (cabinet secretaries) are staffed by Trump loyalists. Thus, it is not clear they would publicly cooperate or concur with the disability determination. While many think the disability is obvious, his loyalists may disagree.

This loyalist problem is both a short and long-term concern. "Congress may by law provide"for a more independent decision-making group. The 117th Congress should put the establishment of a presidential disability review body on its legislative agenda.

Second, the 25th Amendment requires the concurrence of the cabinet. Trump has used acting cabinet secretaries to avoid the Senate confirmation process in order to allow him to fire those considered not sufficiently loyal. The term "principal officers of the executive departments" arguably includes only those officers confirmed by the Senate. If acting secretaries are not included as "principal officers," assembling a majority of the 15 executive departments would be mathematically more difficult, if not impossible.

The 25th Amendment is not likely to provide a practical solution to the inability of Trump to discharge the powers and duties of the president. The Republican leadership, including Pence, must find another way before more happens. The world is watching. 