WASHINGTON (via Indy Star)– Less than a year into Donald Trump’s presidency, polls show more than half the public question his stability amid his fiery Twitter outbursts, rally speeches and sometimes wild allegations.
A former top intelligence official has questioned Trump’s fitness to be in office.
And Yale forensic psychiatrist Bandy Lee is consulting with Democratic members of Congress and other psychiatrists about setting up an expert panel to advise Congress about Trump’s mental health.
But because of the way a constitutional amendment was written by former Indiana Sen. Birch Bayh 50 years ago, removing a president based on mental instability would be no simple matter.
And the key player in the process would be the vice president — in this case, another Hoosier, Mike Pence, a loyal Trump supporter.
The whole notion of questioning Trump's stability is something the White House has called ridiculous.
Crafting the 25th Amendment
As described in Bayh’s book on the 25th Amendment, the senator knew the most controversial aspect of trying to spell out how to handle presidential vacancies or disabilities would be the rare instances when a president’s team disputed his ability to serve.
“You know, fellows, we've talked about this problem a hundred times,” Bayh recounted telling his aides when they were in the final stages of negotiation. “The only time it would present itself — the only time the president would say 'I'm well and able' and the vice president and cabinet would disagree — would be if the president was as nutty as a fruit cake.”
In fact, in the 50 years since the amendment was ratified in 1967, that’s the only section which has never been invoked.
Bayh, 89, declined to be interviewed for this story. But the fact that the "mental illness" clause hasn't been used doesn’t surprise Jay Berman, one of the Bayh aides who worked on the amendment.
“It goes to a set of circumstances that are fraught with tension, emotion,” Berman said in an interview.
But there’s been renewed interest in that section of the amendment since Trump’s inauguration.
More than four in 10 surveyed by Fox News in August said Trump was “very” or “extremely” unstable. Another 16 percent said he was “somewhat” unstable.
Actions that have contributed to these poll numbers include when Trump:
Allegedly revealed U.S. intelligence secrets during a White House meeting with Russian officials in an attempt to impress them.
Threatened during a rambling speech in Phoenix in August to shut down the federal government if Congress did not fund construction of a wall between the U.S. and Mexico.
Tweeted unsubstantiated claims that former President Barack Obama had bugged his offices.
Some conservative commentators have said it may be time to use the 25th Amendment — and that was before James Clapper, who served in top intelligence jobs under former Presidents George W. Bush and Obama, questioned Trump’s “fitness to be in this office.”
Also last month, Tennessee Sen. Bob Corker said Trump “has not yet been able to demonstrate the stability, nor some of the competence, that he needs to demonstrate in order for him to be successful.”
White House spokesman Sarah Huckabee Sanders called that a “ridiculous and outrageous claim that doesn't dignify a response from this podium.”
And there’s no indication Pence feels any differently, which is what would be needed to trigger the amendment.
“There’s a judgment call by the vice president and the cabinet,” said John Feerick, former dean of the Fordham University School of Law. “Then, if the president has a disagreement, Congress has the obligation to deal with that subject.”
Feerick, who spoke at a May forum celebrating the 50th anniversary of the amendment, was one of a dozen outside lawyers brought together to work with Bayh and other senators on its passage.
The ultimate success of their work was improbable.
The Founding Fathers had raised the issue of how to judge whether a president is unable to fulfill his duties — but never answered the question. The Constitution had also not spelled out how a vice president would become president through a death or resignation of the president, or how the vice president would be replaced. Scholars and lawmakers had tried without success to solve the dilemma, despite the fact that eight presidents had died in office and a number of presidents had suffered from disabling illnesses for varying periods.
Thrust into the limelight
It’s extremely difficult to amend the Constitution, and Bayh seemed like an unlikely guy to do it. He was only 34 when elected to the Senate in 1962 at a time when freshmen lawmakers were expected to wait their turn for a gavel.
But Bayh saw an opportunity when Sen. Estes Kefauver, whose chairmanships included a small subcommittee on constitutional amendments, died in office in 1963. The head of the Judiciary Committee thought he could save money by folding the subcommittee. But Bayh argued there were important issues for the panel to consider. And he offered to pay for the aides out of his own budget. (Those aides, who included Berman, lacked an office so they worked out of a converted men’s bathroom.)
Despite the panel’s humble start, it was only a month after Bayh’s taking over the subcommittee that John F. Kennedy’s assassination brought renewed interest into presidential succession questions. Bayh recalled in his book about the amendment – “One Heartbeat Away: Presidential Disability and Succession” — how he got a “sinking feeling in the pit of my stomach” as he abruptly realized that he’d “been thrust into the center of a century-old controversy.”
Lyndon B. Johnson’s ascension to the presidency meant that — for the 16th time — the country had no vice president. And there was no tested way of dealing with a severe presidential illness. Johnson previously had suffered a heart attack and the next two people in line to be president were the 71-year-old speaker of the House and the 86-year-old president pro tempore of the Senate.
When Bayh took on the issue, the most recently proposed constitutional amendment to deal with the issue of presidential disability included a recommendation from the American Bar Association that gave Congress the power to establish, through legislation, a procedure for dealing with the problem.
Bayh was concerned that, because a law could be passed by a simple majority of both houses, a president could be removed for a disability by a majority vote, despite the fact that it takes a two-thirds majority to remove him through impeachment.
“The sense always was that this should not be politicized or invoked lightly — that if you wanted to go after the president, do the articles of impeachment,” Berman said. “This wasn’t some backhanded way to get at the removal of the president.”
Bayh’s amendment, which the ABA backed and worked hard to enact, allows the vice president and a majority of the cabinet to declare a president unable to “discharge the powers and duties of his office.” If the president disputes that determination, two-thirds of both the House and the Senate must vote to put the vice president in charge.
In an effort to gain more support for the amendment, Bayh included another role for Congress. Lawmakers can designate an alternative group — other than the cabinet — that the vice president can work with to declare a president unable to serve.
The amendment didn’t specify how the congressionally designated panel should be composed for practical reasons, Berman said.
“If we had gone that route, it probably would have taken another 10 years,” he said. “It would have raised a whole series of other issues, which I don’t think would have led to any conclusion.”
Rep. Jamie Raskin, D-Md., a former constitutional law professor at American University, introduced legislation in April that would set up such an independent commission. While acknowledging the legislation has little chance of passage in the GOP-controlled Congress, Raskin has said he wants it in place in case Republicans change their mind about Trump’s mind.
One of Bayh’s final hurdles to getting the amendment through Congress in 1965 was reaching an agreement between the House and Senate on how much time lawmakers have to vote if the president contests the vice president’s declaration that he’s unable to fulfill his duties. (The House eventually agreed with the Senate that Congress had 21 days to act.)
When the amendment was sent to the states for ratification, North Dakota planned to be the state that put the amendment over the top. But after the legislature acted, state lawmakers were informed by the U.S. Archives that someone had miscounted and they were the 38th — not 39th — state to ratify. The North Dakotans tried to declare the ratification illegal on a technicality so they could vote again. But they were beaten to the punch by Minnesota and Nevada on Feb. 10, 1967.
Praise for the amendment
President Johnson, a fan of Bayh’s, attributed its passage to Bayh’s intelligence, perseverance, ability to explain and skill to mediate.
Former President Dwight D. Eisenhower, who had had a heart attack, major surgery and stroke while in office, wrote in a foreword to Bayh’s book that he was “particularly pleased to see this matter set at rest.”
After Gerald Ford became president through President Richard Nixon’s resignation, Ford wrote to Bayh how the succession of power to a new president and vice president was eased by his amendment. (Ford followed the first two sections of the amendment when becoming Nixon’s vice president after Spiro Agnew resigned, and when becoming president after Nixon’s resignation.)
The amendment’s third section, which allows for a president to temporarily cede power and duties to a vice president, was used once after Ronald Reagan was shot and twice when George W. Bush underwent surgery under general anesthesia.
When Howard Baker was becoming Reagan’s third chief of staff in 1987, his transition team was warned that Reagan seemed so inattentive and inept that they might need to invoke the amendment’s fourth section. Baker’s team watched Reagan closely during their first official meeting, but were reassured to find the president alert and engaged.
Bayh had hoped that his amendment would finally address the question raised by Constitutional Convention delegate John Dickenson: “What is meant by the term disability and who shall be the judge of it?”
But some believe Trump has renewed that question, which Berman said wasn’t supposed to be definitely answered by the amendment.
“It didn’t settle the issue of what it is,” he said. “It provided a mechanism for addressing the issue.”
Even so, Berman said he doesn't believe the 25th Amendment should be used to evaluate Trump's ability to serve.
"I don’t see right now that the 25th Amendment is applicable, in terms of Section 4 being invoked, because I’m not surprised at the president acting the way he does," Berman said. "I don’t think it’s any different than how he acted before."