Chuck Schumer Called on Mike Pence to Invoke the 25th Amendment. Here's What That Means.

Caroline Hallemann
·5 min read
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Photo credit: SAUL LOEB - Getty Images
Photo credit: SAUL LOEB - Getty Images
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From Town & Country

Following yesterday's siege of the Capitol by a pro-Trump mob, several politicians have called on Vice President Mike Pence to invoke the 25th amendment to remove President Donald Trump from office.

“What happened at the U.S. Capitol yesterday was an insurrection against the United States, incited by the president," Senate Minority Leader Chuck Schumer said in a statement on Thursday. "This president should not hold office one day longer."

“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,” Schumer continued. “If the vice president and the cabinet refuse to stand up, Congress should reconvene to impeach the president.”

Since Schumer's statement, a number of other politicians, including Republican Representative Adam Kinzinger, have also called for the 25th amendment to be invoked.

Here is an additional statement from Senator Sherrod Brown.

More politicians joined the chorus throughout the afternoon.

What is the 25th Amendment?

The 25th amendment is a relatively new addition to the constitution. It was approved by Congress on July 6, 1965; ratified by the states on February 10, 1967; and President Lyndon Johnson certified the amendment on February 23, 1967.

As the Legal Information Institute at Cornell University summarizes: "The Twenty-fifth Amendment was an effort to resolve some of the continuing issues revolving about the office of the President; that is, what happens upon the death, removal, or resignation of the President and what is the course to follow if for some reason the President becomes disabled to such a degree that he cannot fulfill his responsibilities."

The amendment itself has four separate parts, and the text can be read in full here, but today's call for action would focus on the fourth section, which deals with what happens when President is deemed unfit to fulfill his role, but refuses to leave the office voluntarily. The politicians speaking out today feel Trump's role in inciting the mob at the Capitol deems him unfit for office. The section reads:

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.

Thereafter, 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

According to Brian C. Kalt and David Pozen, professors of law at Michigan State University and Columbia Law School, respectively, "Section 4 addresses the dramatic case of a President who may be unable to fulfill his constitutional role but who cannot or will not step aside. It provides both a decision-maker and a procedure. The initial deciding group is the Vice President and a majority of either the Cabinet or some other body that Congress may designate (though Congress has never done so). If this group declares a President 'unable to discharge the powers and duties of his office,' the Vice President immediately becomes Acting President."

There is then an opportunity for the President to resume his powers if he "pronounces himself able" and the deciding group agrees. If they do not agree, the decision then goes to Congress. "The voting rule in these contested cases favors the President; the Vice President continues acting as President only if two-thirds majorities of both chambers agree that the President is unable to serve," explain Kalt and Pozen in this interpretation, published by the National Constitution Center.

Schumer and the other politicians are calling on Mike Pence to invoke the amendment today because the Vice President plays a key role in the process.

The 25th Amendment has been invoked in the past—but not section four.

The 25th amendment has been invoked several times in the 20th century, following presidential and vice presidential vacancies. For example, in 1974, when Richard Nixon resigned as president, Gerald Ford succeeded him, a process codified in the first section of the amendment. He then invoked the second section of the 25th amendment to appoint Nelson Rockefeller as Vice President.

The third section of the 25th amendment has also been invoked in modern times. As Kalt and Pozen explain, "Section 3 allows the President to transfer authority temporarily, by submitting a written declaration that he is 'unable to discharge the powers and duties of his office.'" It is primarily invoked when presidents undergo planned surgeries. For example, President George W. Bush invoked section three on two separate occasions to temporarily transfer power to Vice President Dick Cheney ahead of planned colonoscopies.

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