Jonathan Bernstein has an excellent run-down on why the 25th Amendment is a non-starter to deal with perceived, or even quite real, deficiencies on the part of a sitting President: No, Not the 25th Amendment. I commend the entire piece, which clearly demonstrates that the only way for the 25th to work, the president in question would have to either be in a coma or on board with the process. It will not work if the president does not want to be stripped of power.
The proximate cause of the topic is as follows:
Is Donald Trump losing it? I’ve been on Team He’s Been That Way Since At Least 2015.
[…]
So when people say that Trump is going mad or has dementia, I usually point out that he’s always, at least throughout his political career, seemed that bad.
But I have to say that his latest rant about Canada, Michigan, and China has me hesitating. Not the part in which he butchers the facts about trade and a bridge between Canada and Michigan; he always gets stuff like that wrong. But I do have to say I was taken aback with his claim that if Canada is too friendly with China, “the first thing China will do is terminate ALL Ice Hockey being played in Canada, and permanently eliminate The Stanley Cup.”
That’s…well, I don’t even know how to characterize it. Look: We know he regularly says false, ignorant, bigoted, and/or just plain stupid things. All the time. I mean, just constantly. But this one isn’t bragging about some false achievement, or something he might have seen in GOP-aligned media and foolishly believed, or something that could be written off as at least notionally politically expedient, or even just one of his many a long-standing irrational prejudices. It’s just, er…bonkers.
As readers know, I have been basically with Bernstein: Trump has always been that way, although I, too, had some cracks emerge in the view a few months ago over his seeming inability to understand that Portland was not on fire (In Front of Our Noses: War Zones!).
Regardless of whether things are deteriorating or not, as Bernstein effectively notes in his piece, the 25th Amendment is not designed to handle that kind of problem, even if his cabinet believed that he needed to go. No, the real constitutional solution is impeachment and removal, but that isn’t going to happen, either.
All of this makes me think of my 2020 post, Is Presidential Impeachment Constitutional Dead Letter? While I was sure the answer was “yes” when I wrote that piece at the time, the subsequent 2021 impeachment trial in the wake of J6 proved this to be definitively true. There was never going to be a lower-stakes scenario for the president’s party to convict, and they wouldn’t do it. Partisan concerns were more important than constitutional duty, and here we are as a result.
It seems worth adding here that the long-term DOJ position that sitting presidents cannot be prosecuted and the recent SCOTUS ruling that expanded immunity for the president for “official acts” all amount to very little likely legal rectification to address presidential misconduct, even once their terms as over.
All of this is a reminder of the democratic (meaning here responsive to the voting public) superiority of parliamentary systems, wherein the main goal of the parties is to win a majority of seats in the legislature, and when the leader of the party is seen to be a threat to that goal, the leader is replaced by the party.
Consider that we have legislative elections coming up in November, and the odds are quite high that the Republicans will lose control of the House of Representatives (and maybe even the Senate). A key reason that they are going to lose is because Trumps is unpopular. If Trump were Prime Minister, having been placed there because his party controlled the House, the GOP would have had to decide to either stay with the sinking ship or to try to change their potential electoral fortunes by changing their leader.
The incentives in such a system are to make the party as attractive to as many voters as possible so as to win a majority in the legislature (or to be part of a majority coalition if the system has more than two parties). In our system, the incentive is to win the presidency, mostly by focusing on a handful of competitive states while treating most voters as living in states that are foregone conclusions.
As such, we get a shot every four years to make a choice, and then we have to live with it, as does the president’s party.
There are only two ways Trump is going to leave the presidency. The most likely one is that the term expires and he leaves as the constitution requires in January of 2027. The other is death.
His behavior is not going to get him impeached and removed, that much is clear.
I will allow for the possibility of the 25th Amendment, but only if he falls into a coma.
In short, either constitutional inevitability (and yes, I do have concerns about third-term rhetoric, but I will leave that aside for the moment) or biological inevitability will be his means of exit. Don’t count on his co-partisans to have any incentive or ability to act.
