Everyone's talking about the 25th Amendment — but it has a 'fatal flaw' that makes it essentially useless

Drew Angerer/Getty ImagesDonald Trump.

Chatter about the 25th Amendment has ramped up again on Wednesday after a senior official in President Donald Trump’s administration authored an anonymous New York Times op-ed in which they wrote that colleagues have discussed it.

“Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president,” they wrote. “But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until – one way or another – it’s over.”

That followed a discussion earlier this year that was in line with the release of the explosive book, “Fire and Fury” – whose author, Michael Wolff, said that the amendment was brought up “all the time” in the White House.

Late last year, a Vanity Fair report suggested that former White House chief strategist Steve Bannon believes it is the most plausible way Trump could be removed from office.

But the amendment has a fatal flaw that, when exposed, renders it essentially useless.

Observers have highlighted Section 4 of the 1967 amendment, which allows for the vice president plus a majority of either a president’s Cabinet or Congress to transmit to the Senate president pro tempore and the House speaker “their written declaration that the president is unable to discharge the powers and duties of his office.”

The president can then transmit back to the Senate president pro tempore and House speaker that no such inability exists. The president would then assume the powers of office again unless the vice president and a majority of the Cabinet or Congress provides those members of Congress with a written declaration that the president is still unable to do so.

In that scenario, both chambers of Congress would vote on whether the president is unable to carry out his or her duties. A two-thirds vote in both chambers is required to keep the president out of power.

While that in and of itself appears to be a long-shot to achieve in any administration, it’s not even the “fatal flaw.”

The simplest way to proceed with the 25th Amendment is via the president’s Cabinet. But the 25th Amendment contains no mechanism for dealing with a president who simply decides to fire Cabinet members who decide to join with a majority declaring the president unfit.

“One of the holes in 25,” Larry Sabato, director of the University of Virginia Center for Politics, tweeted.

Democratic Rep. Earl Blumenauer of Oregon also noted this problem in a letter to The New York Times last year.

“The growing discussion about the 25th Amendment, which provides a mechanism for presidential removal and succession, is timely and important,” he wrote. “As it stands, the amendment contains a fatal flaw.”

“Absent Congress’ decision to establish a body to declare the president unfit for office, the 25th Amendment requires a majority of the Cabinet to act against the president,” he continued. “Yet if the president is erratic or irrational (rather than medically incapacitated), a president could simply fire his or her own cabinet.”

Trump himself reportedly didn’t seem to know the potential implications of the 25th Amendment. When Bannon told him it posed the biggest threat to his presidency, according to Vanity Fair, Trump said, “What’s that?”

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