President Trump’s tenure has exposed a defect in our constitutional system: A president can be impeached and removed from office if convicted of high crimes and misdemeanors. He can be removed, under the conventional understanding of the 25th Amendment, if he is incapacitated by mental or physical illness. But there is no obvious solution for a president who has not committed a crime or been disabled by illness, but has lost the confidence of the public because of a failure of temperament, ideology or ability.
The current understanding of the 25th Amendment should be enlarged so as to provide authority to address this problem, through creation of a Presidential Oversight Council empowered to recommend removal of the president on political rather than medical grounds. When both the president’s party and the opposing party lose confidence in the president’s ability to govern, the council would stand ready to evaluate him and make a recommendation to Congress. Congress would be required to vote on its recommendation.
Certainly, the authors of the 25th Amendment had in mind presidents who suffered from illness while in office, such as Woodrow Wilson after his stroke. But they deliberately used broad language that goes beyond psychological or physical disability. The amendment refers to a president who is “unable to discharge the powers and duties of his office.” This language does not specifically refer to mental or physical factors as the source of the inability, and thus allows removal of a president whose incompetence results from other reasons — including a failure of temperament, ideology or ability.
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