Several lawmakers on both sides of the aisle are calling for Vice President Mike Pence to invoke the 25th Amendment to immediately remove President Donald Trump from office, something that would require support from a majority of Trump’s cabinet members.
The proposed effort would also require support from two-thirds of both chambers of Congress in case Trump were to try to overturn the decision.
There has been some question in the past about what would constitute a majority in the cabinet, given the variety of roles those individuals play. In a 1985 opinion from the U.S. Department of Justice Office of Legal Counsel, the acting assistant attorney general at the time, Ralph Tarr, wrote that it would be best when contemplating deployment of the 25th Amendment for a majority of support to exist among the secretaries heading federal departments, as well as within the cabinet as a whole.
“As a practical matter, and in order to avoid any doubt regarding the sufficiency of any given declaration, it would be desirable to obtain the assent of a sufficient number of officials to satisfy any definition of the term ‘principal officers of the executive departments'” referred to within the 25th Amendment, Tarr’s opinion said. He did not specify what a ‘sufficient number’ would entail, but with 23 cabinet members, at least 11 would need to support the measure. Pence would become the 12th member and establish a majority.
The 25th Amendment didn’t exist until the mid-1960s, after the assassination of President John F. Kennedy. Following his death, Congress worked to officiate the process by which a vice president assumes power in the event that the elected leader is unable to fulfill his duties as president. The amendment was ratified in 1967 and contains four sections outlining the steps required for a varying set of circumstances.
The amendment officially grants the presidency to the vice president when the elected president dies or resigns. It also allows the vice president to step in if the president decides of his own accord that he is unable to fulfill the duties of his office.
The fourth section of the amendment is the part of particular interest to lawmakers now. The first paragraph of the section says: “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”
In this case, that means that Pence must have the support of a majority of members in Trump’s Cabinet. If Pence and the majority of the president’s Cabinet agree Trump is unfit to fulfill his duties, they must submit that declaration in writing to Chuck Grassley, the Republican Iowa senator who serves as the President pro tempore of the Senate, and Congresswoman Nancy Pelosi of California, the Democratic Speaker of the House.
However, Trump would be able to contest that decision. As the 25th Amendment states: “When the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.”
That means that, even if Pence enacts the 25th Amendment with help from members of Trump’s Cabinet, they would need to double down on their decision and directly defy Trump if he contests them in order to keep the president out of office. Pence and supporting members of the Cabinet would have four days to override Trump in another penned declaration to Grassley and Pelosi—after which Congress would be called to convene within 48 hours to vote on the matter. Two-thirds of both chambers of the U.S. Congress would need to agree in order to remove Trump.
The 25th Amendment has been discussed on other occasions during Trump’s time in office. But Wednesday’s violent protests at the Capitol inspired a new surge of support for the idea, even though Trump now has less than two weeks in office remaining before President-elect Joe Biden is inaugurated.
Seventeen members of the House Judiciary Committee led by Democratic Congressmen David Cicilline of Rhode Island and Ted Lieu of California signed a letter sent to Pence Wednesday evening calling upon him to invoke the 25th Amendment, writing that Trump “has shown time and again that he is unwilling to protect our Democracy and carry out the duties of the office.”
NEW: I am sending a letter with @RepTedLieu and our colleagues on the House Judiciary Committee, calling on Vice President Pence to invoke the 25th Amendment to remove Donald Trump from office after today’s events. pic.twitter.com/5VK8DLTLn4
Representative Adam Kinzinger of Illinois became the first congressional Republican Thursday morning to echo their calls for Trump’s removal. In a video message Kinzinger posted online, he called Wednesday’s events in D.C. a “wakeup call.”
“I call for the vice president and members of the cabinet to ensure the next few weeks are safe for the American people and that we have a sane captain of the ship,” Kinzinger said. “It’s time to invoke the 25th Amendment and to end this nightmare.”
It’s with a heavy heart I am calling for the sake of our Democracy that the 25th Amendment be invoked. My statement: pic.twitter.com/yVyQrYcjuD
Senate Minority Leader Chuck Schumer also said Thursday that he supports calls to remove Trump from office.
“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,” Schumer said in a statement. “The quickest and most effective way—it can be done today—to remove this president from office would be for the Vice President to immediately invoke the 25th amendment. If the Vice President and the Cabinet refuse to stand up, Congress must reconvene to impeach President Trump.”
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.
Newsweek reached out to Schumer for further comment, but did not receive a response in time for publication.
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News – Here’s how many Cabinet members must agree to invoke 25th Amendment