Constitutional scholars: 25th Amendment talk 'premature,' unrealistic

Story highlights

  • The 25th Amendment was adopted in 1967 after the assassination of President John F. Kennedy
  • "Are (Democrats) really suggesting that (Trump's) incapacitated by tweet?" Jonathan Turley said

(CNN)Democratic Rep. Jamie Raskin is urging his colleagues to get behind a bill that could potentially oust President Donald Trump if he was mentally or physically unfit to lead, and the Maryland Democrat is citing the 25th Amendment of the Constitution as his legal backup.

Talk of the 25th Amendment, which Raskin first initiated in April, intensified following Trump's relentless attacks on the news media through a series of controversial tweets last week.
The amendment was adopted in 1967, less than four years after the assassination of President John F. Kennedy, to establish procedures in case the president or vice president are unable to perform their duties.
    According to constitutional scholars Jonathan Turley and Gloria Browne-Marshall, the amendment has historically been used in cases of physical incapacitation. Attempting to apply it to prove mental or emotional incapacity is not only "premature," they say, but its success would be nearly impossible.
    Despite the fact that two dozen Democrats have signed on to the effort as of last Thursday, there is virtually no chance that this effort will move forward. One path requires a formal declaration from the vice president and the Cabinet that the President is unable to perform his duties. When the 25th Amendment was used in the past in cases when the President was physically unable to lead, there was no debate over whether the President was fit to perform his duties.
    Raskin pushed back on this characterization in a statement provided to CNN on Monday.
    "Critics calling our bill to create the 'body' called for in the 25th Amendment 'premature' are inviting Congress to wait for a full-blown crisis to arrive in this presidency or the next before we act," Raskin said. "That passive approach defeats the whole design of the Framers of the 25th Amendment."
    CNN asked the White House for comment on Raskin's efforts but has not yet heard back.

    What does the 25th Amendment say?

    The 25th Amendment, which was initially proposed by Congress and ratified following Kennedy's assassination, establishes procedures for replacing the President or Vice President in the event of death, removal, resignation, or incapacitation.
    While the language of the Amendment does not specify whether the incapacitation is physical or mental, Turley, a constitutional law professor at George Washington University, told CNN on Monday that the 25th Amendment was added to the Constitution "largely for physical incapacity," and has historically "exclusively been used for physical incapacity."
    For example, it was invoked when President Ronald Reagan underwent colon cancer surgery in 1985 and when President George W. Bush had a colonoscopy in 2002 and 2007.
    But he added that because the language of the amendment is "ambiguous," it leaves room for arguments related to mental incapacity.
    Raskin, a constitutional law professor, is citing language in Section 4 — the final and longest section of the amendment — to make his argument.
    "Section 4 of the #25thAmendment empowers Congress to create a body that can confront presidential incapacity," he tweeted Thursday.
    While he thinks the 25th Amendment "was a good idea" because it established procedures for the transfer of power, Turley added that the language "has in itself a dangerous ambiguity."
    "I think the framers would have been leery of that type of language because it is so ambiguous," Turley said. "It lays the presidency open to partisan attempts at removal. I believe this is an example of exactly the danger created by the 25th Amendment."

    Could it be successfully used against Trump?

    Raskin has proposed creating an 11-member commission made up of mostly physicians and psychiatrists -- more formally called the "Oversight Commission on Presidential Capacity." The panel would carry out a medical examination and determine whether the President was physically or mentally able to do the job.
    Browne-Marshall, a professor of constitutional law at John Jay College of Criminal Justice, told CNN Monday, "That area of medicine is already ambiguous to begin with, so I think it would be even more difficult to apply it to an unwilling patient."
    She added that even if such a commission was established and even if it came to the conclusion that a president was mentally unstable, legally, all the president would have to do is "deny" the findings of the commission and those findings would be kicked back to Congress.
    In that event, according to section four of the 25th Amendment, Congress would have to take a vote within 21 days "after receipt of the latter written declaration," and a "two-thirds vote of both Houses" is required to transfer power from a president to a vice-president.
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    "As ambiguous as mental health determinations are anyways, it would take well beyond what we have seen, so far, for Congress to come together in that way," she added.
    Browne-Marshall said that unless there is physical proof of potential mental instability, such as violently acting out, harming others or oneself physically, proving mental incapacity would be "very difficult to apply."
    At best, Browne-Marshall said, these efforts would "send a message" to the White House, but would not have any realistic or material gains.
    Turley echoed her.
    "Democrats are playing into (Trump's) hands by adopting this radical proposal without any foundation," he said. "Are they really suggesting that he's incapacitated by tweet? It's not only (legally) unfounded, but it's politically self-defeating."