David Greenberg, a professor of history and journalism and media studies at Rutgers, is a contributing editor at Politico Magazine. He is the author of several works of political history including, most recently, Republic of Spin: An Inside History of the American Presidency. Rebecca Lubot is a policy and legislative specialist with a PhD in history from Rutgers University and an MSc in the theory and history of international relations from The London School of Economics. Her dissertation, defended last year, was “The Passage of the Twenty-Fifth Amendment: Nuclear Anxiety and Presidential Continuity,” from which parts of this essay are drawn.

An unnamed administration official’s recent New York Times op-ed revealing that top aides have been trying to restrain President Donald Trump’s worst impulses has launched a new debate about removing Trump from office with the 25th Amendment. Describing a “leadership style” that is “impetuous, adversarial, petty and ineffective,” the official cited “early whispers within the cabinet of invoking the 25th Amendment” that were dropped because “no one wanted to precipitate a constitutional crisis.” Instead, he said, cooler heads are seeking “to steer the administration in the right direction until—one way or another—it’s over.”

Controversy has focused mostly on whether this official should be praised for curbing Trump or blasted for writing anonymously. But there’s another question that’s trickier: Can the 25th Amendment be used to send Trump back to Manhattan? Ratified in 1967, the amendment has four sections. Section 1 restated more or less what’s in the Constitution: that if the president is removed from office because of death or resignation, the vice president becomes president. Section 2 allows for the replacement of the vice president when the office is vacant; it was used to make Gerald Ford vice president after Spiro Agnew’s resignation in 1973, and to install Nelson Rockefeller after Ford’s ascension to the presidency. Section 3 sets forth when and how the president can voluntarily transfer his powers temporarily—as, for example, George W. Bush did twice when undergoing colonoscopies. But this debate centers on Section 4, which has never been invoked. This section lets the vice president and a majority of Cabinet secretaries (“or such body as Congress may by law provide”) declare the president “unable to discharge the powers and duties of his office,” making the vice president the “Acting President” until the president, through a complex process, is deemed fit to return to office.


Can Trump be removed from office under this amendment? Or would doing so provoke a constitutional crisis, as the Times’ essayist feared? Some critics have attacked the official for not going forward with Section 4, suggesting that the internal undermining of Trump is dangerous or undemocratic. The history of the 25th Amendment, however, suggests that our unnamed informer is on solid ground.



***

The concern with presidential inability dates at least to the 1880s, when an assassin shot President James Garfield, who lay dying for 79 days. During that long stretch, Garfield was largely unable to carry out any presidential duties, but these were summer months, the presidency was a less substantial office, and, while some matters went neglected, no urgent need for his leadership arose. Still, Vice President Chester Arthur and others debated how to proceed, and Arthur did not want to look like a usurper. The original text of the Constitution says that in case of presidential inability, the powers and duties of the office devolve on the vice president—but it doesn’t say what constitutes inability or how it is determined. In his December 1881 message to Congress, Arthur, now president, noted many unresolved questions: “What is the intendment of the Constitution in its specification of ‘inability to discharge the powers and duties of the said office’ as one of the contingencies which calls the Vice-President to the exercise of Presidential functions? Is the inability limited in its nature to long-continued intellectual incapacity, or has it a broader import? What must be its extent and duration? How must its existence be established?” He called on Congress to take up these and other related questions.

By the time of Woodrow Wilson’s presidency, however, the answers remained murky. And when Wilson suffered a major stroke in 1919, there was renewed discussion of legislation to clarify these questions. But the Republican-led Congress took no action to remove Wilson, even temporarily, fearing Democratic reprisals and voter backlash. Wilson himself showed no inclination to resign. In the event, his wife, Edith, nicknamed the “Presidentress,” and Wilson’s doctor and friend, Dr. Cary T. Grayson—neither of whom were elected officials—ended up making many decisions in his name.

Efforts to resolve the issue took on new urgency in the nuclear age, when the danger of a mentally unfit or incapacitated president starting a war assumed apocalyptic dimensions. Dwight Eisenhower suffered several health crises, including a heart attack in 1955, a bout of crippling ileitis in 1956, and a stroke in 1957. His precarious health, and the ugly reputation of his vice president, Richard Nixon, prompted Adlai Stevenson, the Democratic presidential nominee in 1956, to warn voters about putting Nixon one heartbeat away from nuclear control. In March 1958, after winning reelection, Eisenhower and Nixon signed an agreement providing that in the event of presidential inability, the president would inform the vice president (if possible) and the vice president would serve as acting president, exercising the powers and duties of the office. The president himself would decide when he was no longer inabled—notably, legislators used that word and not “disabled,” which can imply a surmountable handicap—and reassume the powers and duties of the office. John F. Kennedy and Lyndon Johnson signed a similar agreement in 1961.

Kennedy’s assassination in 1963, along with the continuing specter of nuclear war, finally spurred the ratification of an amendment to resolve the confusion. Although Kennedy died quickly, people wondered what would have happened if he had lingered comatose in Parkland Hospital. “Has the Congress prepared the presidency adequately for the possibilities of a violent age?” New York Times columnist James Reston asked. “Is the rule of presidential succession satisfactory for these days of human madness and scientific destruction?”



***

Senator Birch Bayh of Indiana led the charge for a remedy. Drawing on the work of a young member of the American Bar Association, John D. Feerick, Bayh argued that Congress had to solve the questions around entitled inability—how it is defined, who initiates the question of whether it has occurred, who resolves the issue when it has been raised, and who decides if and when the inability has ended. Bayh drafted an amendment that made its way through Congress. Senate Minority Leader Everett M. Dirksen emerged as a key opponent; though he also favored an amendment, he wanted the broadest language possible that would empower Congress to determine presidential inability—a “blank check,” in Bayh’s view. In contrast, Senator Robert F. Kennedy of New York wanted the amendment to define “inability” more closely, with more precision about the “gravity” and “duration” of the incapacity that would warrant action. Short of that, he wished for examples of what did not count as an inability.

During hearings in 1964 and 1965, members of Congress debated what constituted “inability” in Sections 3 and 4. Some, such as Representative Richard Poff of Virginia, suggested that Section 4 should be used when the president was simply “unable or unwilling to make any rational decision.” But the burden of the congressional commentary was to conclude, as Feerick wrote, that “unpopularity, incompetence, impeachable conduct, poor judgment, and laziness [did] not constitute an ‘inability’ within the meanings of the amendment.”

So what did count? In a 1992 book, The President Has Been Shot, physician Herbert L. Abrams examined the situations in which the amendment’s framers intended for Sections 3 and 4 to be invoked. Section 3—the temporary transfer of power—applied, in his judgment, during “planned, major surgery,” other surgery requiring general anesthesia, and “the use of psychoactive drugs in significant amounts.” It could also be invoked, he said, in the event of “serious presidential illness”; “the diagnosis of Alzheimer’s disease or of any other progressive, mentally disabling conditions”; if the president or his physician believed “that an illness, injury, or emotional condition is interfering with his judgment or ability to govern”; or during “any anticipated situations in which the president will be unable to communicate with his government,” such as a nuclear strike.

As for Section 4, Abrams said its use was more “complicated and delicate.” It applied during such serious situations as “loss of consciousness,” “significant alterations of the president’s cognitive faculties or inability to communicate,” “serious injury to the president following an accident or attack on his person,” “terminal illness,” and “progressive, mentally disabling conditions.”

The legislative debate over the amendment and the prevailing interpretations of its meanings suggest that, despite its vagueness, it doesn’t apply to someone like Trump. Trump has an extreme personality, with many negative qualities—as the Times' op-ed writer notes, he is “impetuous, adversarial, petty and ineffective.” Some might judge him to be a grandiose narcissist or even a pathological liar. But having a personality disorder or even certain forms of mental illness doesn’t necessarily render a president unfit to govern (Lincoln suffered from depression). And in fact, Trump is not “unable” to serve as president, as would be required to invoke the 25th Amendment. He is actually a high-achieving, high-functioning person who has excelled in business, entertainment and now politics. He hasn’t suffered from a crippling stroke, a psychotic break or dementia. He is, we would argue, temperamentally unsuited to be president—but that is a reason to vote against him, not to resort to a never-used clause in a constitutional amendment. If Cabinet officers tried to use Section 4, Trump would surely challenge them in court and in the court of public opinion—setting up a constitutional crisis that would make the Clinton impeachment and Bush v. Gore look like schoolyard spats. Trump might conceivably refuse to leave office even if ordered by the Supreme Court—at which point Defense Secretary Jim Mattis’ loyalties would really be tested.

So what can be done to rein in Trump’s “impetuous, adversarial, petty and ineffective” style? According to the Constitution, impeachment is supposed to be used only for “treason, bribery, or other high crimes and misdemeanors.” Even if Trump has committed such crimes, convicting him would require the votes of 17 Republican senators—which aren’t likely to be forthcoming soon. For those who worry about Trump’s governance, the answer is to vote him out when he’s up for reelection, in 2020.

Meanwhile, the best hope for the nation is for senior officials in the administration who are less impulsive and more reasonable than Trump to mitigate his worst inclinations—precisely what the anonymous White House official says some are attempting to do. Doing so is fully constitutional and far from unprecedented: Nixon’s aides often defied orders he made while drunk or in an emotional froth, and Reagan’s advisers famously sought to quietly set things right when his inattention or rhetorical recklessness caused trouble, as often happened. The Trump officials who are using their duly constituted power to try to avert disaster may or may not be “unsung heroes,” but surely it is better than the alternative—of trying to exploit a clause in the Constitution to cashier a president through nonelective means.