Bob Schwartz

Trump and the Twenty-Fifth Amendment

Ratified in 1967, in the wake of the JFK assassination, the Twenty-Fifth Amendment of the Constitution concerns the orderly way to deal with a president unable to carry out his duties.

There have for a while been discussions of whether the current president is mentally fit for office. This week, as he evidences the psychological effects of steroid therapy, of Covid, and of political stress, the question is more focused than ever.

By coincidence, this week sees the publication of Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment by Michigan State law professor Brian C. Kalt.

The long and complex Section 4 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.

This has never been invoked and there is no litigation on what it means or how it works. Two things are clear.

The phrase “unable to discharge the powers and duties of his office” (written in 1967, before the drafters understood that it made complete sense to neutrally say “the office” or “their office”) is open to interpretation. What does “unable” mean in this context?

The process is intended to be careful and onerous. It is not a judgment to be made lightly. The decision is spread among a large number of people, so the judgment of even the most partisan or least aware would be overweighed by the prudent and patriotic.

In the present case, even if Trump is mentally unfit, the chance that the amendment would successfully be invoked and applied is very small—even if his psychological condition continues to worsen.

In the future, who knows what becomes of the amendment? Maybe, with the current experience, it will be revised to include mental unfitness. And while they are at it, maybe they can implicitly acknowledge the possibility that the president might not be a “he.”

VP Debate: The Jewish Moment

The most fascinating moment of the VP debate—aside from The Fly—was VP Pence defending Trump on charges that he refused to denounce and encouraged white supremacists and Neo-Nazis:

“President Trump has Jewish grandchildren. His daughter and son-in-law are Jewish.”

We haven’t heard much of this defense before. It is delicate. It sounds too much like “some of my best friends are…”, only more so.

Like Trump, this line is disabled in so many ways that it is hard to know where to begin.

Identifying or practicing as a Jew doesn’t mean you are not intolerant, bigoted or morally challenged. That is not a criticism of the tradition, just a fact of life. I’ve made clear in previous posts that a number of people involved in the administration’s most debased policies are Jewish, at least by affinity. I’ve directly asked where their rabbis are in all this, and a while ago, Stephen Miller’s past rabbi—the man who bar mitzvahed him—publicly took his former congregant to task.

If it’s true that being Jewish is no defense, then the associative principle of only having Jewish relatives is even weaker.

Then there is the question of Trump’s frequently claimed faith. He is obviously faithless, just yesterday bizarrely claiming that his getting the virus was “a blessing from God.” Besides this being a facet of his possible psychosis and Messiah complex, any time a religious tradition is used in supportive reference to Trump, you can be sure it is hypocritical.

Also, there is a thought that Trump himself is actually anti-Semitic. We know without question that his father was, and a number of the recent revelations about the president, including the book by his niece, confirm that Trump himself is. Which not only makes Pence’s defense strange, but raises even stranger questions about what Trump actually thinks about his Jewish daughter, son-in-law and grandchildren.

A final twisted aspect, probably bafflingly intentional, is that Kamala Harris is not Jewish, but is married to a Jewish man and has Jewish stepchildren. See, she is just like Trump and can’t criticize him! Or something like that.

We would all be better off never having to again hear that line from Pence or any other Trump defenders. Those of us in the tradition would be better off, too, as would Judaism.