Alan Dershowitz: Invoking The 25th Amendment Against Trump Would Be Unconstitutional

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The 25th Amendment provides a complex mechanism for removing a president who is unable to perform his duties because of illness or other incapacity. It was not designed for resolving political disagreements with a sitting president. Its legislative history is clear. Yet some radical democrats are threatening to invoke it in response to President Trump’s actions toward Iran. This would violate both the text and intention of the Constitution.

These partisans know that under current law only the vice president and a majority of the cabinet can invoke its provisions transferring power to the vice president for as long as the president is “unable to discharge the powers and duties of his office.” They know that this president is perfectly able to discharge his duties; they just don’t approve of the way he is discharging them.

They also know that the framers of the 25th Amendment did not intend it to apply to political differences over policy; it was designed as a neutral, non-partisan guardrail to be invoked in the event a president suffers a stroke or develops Alzheimer’s disease or some other objectively diagnosable mental or physical disability.

Weaponizing this safeguard for partisan advantage, as some Democrats are now seeking to do, weakens it and guarantees that the other side will try to weaponize it as well.

Knowing that it has no chance of currently succeeding against one of the most active and in-your-face presidents in history, why are these partisan Democrats deploying this particular weapon from an arsenal that includes so many more potentially effective tools? Because other partisan ploys have failed.

During President Trump’s first term, a Democratic majority in the house voted to impeach him, in violation of the text of the Constitution, which limits impeachment to “treason, bribery or other high crimes and misdemeanors.” That impeachment resolution did not allege any of those crimes, instead it invoked broad, meaningless phrases such as abuse of power and contempt of Congress, criteria which the framers rejected and of which many former presidents have been accused. I argued successfully against the Senate removing President Trump on those unconstitutional grounds.

Having failed in their misuse of the impeachment provision of the Constitution, some of these same Democrats now seek to misuse the 25th Amendment for partisan political purposes. That too will fail, because the amendment provides safeguards that would make it virtually impossible to invoke against President Trump at this time.

The Democrats who are knowingly abusing the constitution understand that their threats have no chance of succeeding, but they don’t care, because their goal is simply to make political points by seeking to embarrass President Trump with false claims that he is somehow unable to continue to serve, suggesting – and in some instances saying – that he is mentally ill, senile or demented. They know, as anyone who has met with the president knows, that to the contrary, he is on top of his game, willing and able to answer media questions and to give as good as he gets. He is among the most energetic and confrontational presidents in history. That is precisely why they want to get rid of him.

They are simply lying in order to contrive a phony political case under the cover of the 25th Amendment. They seek to equate disagreement over policies and actions with incapacity to govern. Such an equation would gut the 25th Amendment as an important part of our institutional system of checks and balances,

Nor should they be allowed to get away with their deliberate abuse of the constitution, without themselves paying a political price. Crying wolf about the 25th Amendment threatens to weaken its use in situations for which it was intended. Turning it into a partisan weapon instead of its intended role as neutral safeguard against a physically or mentally incapacitated president, will make it difficult, if not impossible, to invoke successfully in cases of actual incapacity. If one side misuses the amendment to try to turn a competent president out of office, the other side will misuse it to keep an incompetent president in office.

We have experienced presidential incapacity in our history. Near the end of his second term, Woodrow Wilson was incapacitated by a stroke, and his wife reportedly made some important presidential decisions. There are questions about Ronald Regan’s Alzheimer’s and when it began. As presidents continue to serve into their 70s and 80s, the likelihood of a truly incapacitated president increases. And incapacity is often a matter of degree and development over time. That is why it is imperative to maintain the 25th Amendment as a neutral, non-partisan guardrail against a president who is objectively unable to do his job, without regard to politics.

The Democrats who are now trying to misuse that important guardrail of governance must be stopped before they cause irreparable damage to our constitutional system of checks and balances. Cooler heads within their party must make it clear that the leadership of that party does not support this unconstitutional ploy, which could someday be misused against a Democratic president, as some Republicans tried to do against President Joe Biden. The 25th Amendment is like the axe in the glass case marked: “For emergency use only.”

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