The Failure of the 25th Amendment - Part 1

but then again, Mike Pence and the Secret Service failed as well

In 1987, there was a cute little movie called Broadcast News¹. A bit of dialogue, though, drove political junkies crazy.

Spot the problem?

The Cabinet of the United States² had 13 members in 1987 not 10. The Veterans Administration would not be a cabinet level department until 1988 and the Department of Homeland Security would not exist for another 15 years. Theoretically, another 6 agencies have cabinet level status (SBA, EPA, STP, OMB, DNI, & USTR)³, but let’s stick with positions with Secretaries. Plus, none of those cabinet level acronyms gets to be designated survivor so their political worth is nil.

So, on January 7th or 8th 2021, why wasn’t a Cabinet meeting convened by Vice President to consider removing Donald Trump pursuant to Section 4 of the 25th Amendment?

The time process mostly and some Trumpian realism.

For every presidency, there are 1381 days where Section 4 of the 25th Amendment works perfectly. From January 20th upon taking the oath of office until the date of the next presidential election, the physical or mental impairment of the President is addressed rather straightforwardly. After that, it’s a bit muddled or it’s become so once Trump became President.

There are 73 to 79 days between Election day and the start of a new presidential term. And, the Electoral College casts its presidential ballots 32 to 38 days before inauguration day. The process envisioned under the 25th Amendment takes at minimum 26 days, of which the first 5 are critical and fraught with an unanticipated constitutional crisis.

Despite calls for the invocation of Section 4 after January 6th by multiple constitutional and legal scholars⁴, the Senate Minority Leader Chuck Schumer⁵, and Speaker Nancy Pelosi⁶, Vice President Mike Pence did nothing. Not even conservative lobbying groups could convince Pence to act⁷.

From an idealist standpoint, Pence should have. Pragmatically, it’s likely ordering the Cabinet to meet pursuant to Section 4 was going to involve legal, constitutional, and ethical issues — not to mention that the process was not designed for a 24 hour news cycle in an age where governmental transparency is a value demanded by those on the Left and Right (but not at the same time).

Unfortunately, Trumpism and Pence’s failure to understand his political power at that point brought America to a wasteland devoid of principle but overflowing with a nihilistic lust for power. Plus, the Secret Service stopped serving as presidential protectors and morphed into a Praetorian Guard.

TOMORROW: Part II and some realism about how to prevent another Trumpian political crisis.

1. https://www.imdb.com/title/tt0092699/

2. State, Treasury, Defense, Justice, Interior, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Deveopment, Transportation, Energy, Education, Veterans Affairs, and Homeland Security

3. Small Business Administration, Environmental Protection Agency, Office of Science and Technonoly (Yep!), Office of Management and Budget, Director of National Intelligence, and U.S. Trade Representative

4. https://nymag.com/intelligencer/2021/01/if-trump-uses-martial-law-pence-should-use-25th-amendment.html

Chuck Schumer @SenSchumer

What happened at the U.S. Capitol yesterday was an insurrection against the United States, incited by President Trump. This president must not hold office one day longer.

5.

6. https://www.politico.com/news/2021/01/07/lawmakers-trump-25th-amendment-455832

7. https://www.cnbc.com/2021/01/06/national-association-of-manufacturers-calls-dc-protests-sedition.html