What can be done in the pursuit of some degree of tranquility as we approach the moment of President-Elect Joe Biden’s inauguration, and thereafter? Among the options, some propose the invocation of the 25th Amendment. The 25th Amendment addresses presidential succession and inability to perform duties, though Section 4 has never been used. It delineates the procedures by which presidential powers and duties are transferred to the vice president when the president is unable or unwilling to recognize his inability to perform the duties of his office.
However, we should look before we leap.
First, Vice President Mike Pence is highly unlikely to support the action. It is true that he “stood his ground” on January 6 in his refusal to reverse the Electoral College vote, which declared that Mr. Biden received enough votes to be inaugurated as the 46th president. It is also clear that this is a vice president who avoids chaos. Therefore, Pence’s buy-in to invoke the 25th Amendment is highly unlikely.
Second, the use of the 25th Amendment brings great risk of being counterproductive, as indicated by the warning issued by John Bolton, the U.S. National Security Adviser. Bolton has a significant reputation for hawkish tendencies, yet he gives a neon sign of warning regarding resorting to the 25th Amendment. Such action would likely produce more harm than good, provoking the president to resort to the immediate firing cabinet of members, as well as the risk of giving greater aid and comfort to our adversaries on the international stage. Consequently, according to Bolton, the invocation of the 25th Amendment would require extreme care and due regard to prevent further socio-political-global harm to the nation.
Third, the invocation of the 25th Amendment is time-consuming. Its use would be very messy because, when it comes to Washington, even what appears to be a simple matter somehow morphs into an unimaginable political quagmire. Can you imagine the complications resulting from the initiation of the untried and complex 25th Amendment? Certainly, with President-Elect Biden’s inauguration two weeks away, time must be of the essence.
Fourth, a significant risk of backfire exists if the 25th Amendment were to be utilized. Consider the following: Vice President Pence and Cabinet members deem the president unable to carry out his executive duties. The president, surprisingly, is compliant, throws in the towel, and moves on. Vice President Pence then proceeds to pardon the ex-chief executive, thereby freeing him to wreak more havoc on the nation. He would potentially avoid restrictions regarding his running for, or being elected to future public service. He would likely re-engage in the pseudo-healing of the country, calling upon his mantra “Make American Great Again.” Is the 25th Amendment route really worth these risks, particularly since a new leader will be inaugurated in less than two weeks? I think not.
Eddy F. Carder, Ph.D., J.D.
Therefore, for all of these reasons, the implication of the 25th Amendment is not the most appropriate solution to the Republic’s problem in the person of President Donald Trump. Nonetheless, he must face consequences for his reckless actions and words. As a result, the preferential option among the constitutional arsenal appears to be impeachment. Although not without its own risks, this president’s impeachment would provide the appropriate consequences as well as the necessary protections for the continuation of the democracy.
Eddy F. Carder, Ph.D., J.D., teaches constitutional law and philosophy in Prairie View A&M University’s Marvin D. and June Samuel Brailsford College of Arts and Sciences.
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