Trump,truth and the 25th Amendment: Australian reflections on presidential inability and removal

Abstract

This article critically assesses a key question raised repeatedly during the tenure of US President Donald Trump – could (or should) the 25th Amendment to the US Constitution have been invoked to suspend him from office? Although moot in a practical sense following the 2020 US presidential election, exploring this question from an Australian perspective provides the opportunity to reflect on fundamental questions of constitutional design and the capacity of our own democratic institutions to respond when tested. The article suggests that the US experience with President Trump highlights some advantages offered by Australia’s parliamentary system.

Keywords

Comparative law constitutional law legal system parliament

On 6 January 2021, a violent pro-Trump mob stormed the United States (US) Capitol building, disrupting a joint session of Congress being held to formally certify Electoral College results declaring Democrat Joe Biden the winner of the 2020 US presidential election. Tragically, five people were killed, including a US Capitol police officer responding to the riots. These events followed weeks of President Trump refusing to concede his election loss and perpetuating false claims of ‘election fraud’, and occurred on the same day as a rally where Trump seemingly urged supporters to march on the Capitol and ‘fight like hell’.¹

In response, media and political attention focused on potential mechanisms available under the US Constitution to sanction Trump for his actions, and even raised the possibility of his removal. Speaker of the House of Representatives Nancy Pelosi, for example, described Trump as ‘a very dangerous person who should not continue in office’.² These sentiments echoed concerns raised by critics throughout Trump’s tenure as the 45th US President regarding his fitness for the role from a psychological and competency perspective.

A further and distinct dimension to these broader questions of presidential ability (or inability as the case may be) was implicated by events occurring a few months earlier in late 2020. Around 1 am on 2 October 2020, Trump announced via Twitter that he and First Lady Melania Trump had been diagnosed with COVID-19.³ It soon became apparent that other high ranking government officials had also tested positive, and the President was subsequently admitted to Walter Reed National Military Medical Centre with conflicting reports regarding his health condition. By virtue of his age and weight, Trump was at high risk of potentially life-threatening COVID-19 related health complications. Although he resumed campaigning for the 2020 presidential election shortly after, the incident highlighted the real possibility (particularly during a pandemic) of a President becoming incapacitated (or even dying) in office.

These events raise important questions: to what extent does the US Constitution address the scenario where a President may be impaired in some way; and is a constitutional transfer of power possible if a vacancy arises in the office? More controversially, what if concerns are raised regarding a President’s fitness and competency to perform their duties, but they can’t (or won’t) step aside? Is a change in leadership (potentially even the involuntary removal of a President) possible in such circumstances?

Responding to these developments, this article explores the role that a rarely invoked provision of the US Constitution could hypothetically play in this context – the 25th Amendment. In summary, the amendment provides a mechanism for temporarily transferring power to the Vice President in circumstances where a President is ‘unable to discharge the powers and duties of his office’. After providing an historical and textual overview of the amendment’s key provisions, the article critically assesses the claim that the 25th Amendment could (or should) have been invoked to suspend President Trump from power during his term in office.

The issue of leadership change in a democracy outside of an election is of high constitutional significance, given the tension this raises between respecting the will of the people (as expressed on polling day) and the practical necessity of having accountability mechanisms and procedures for power transfers as may be required in extreme circumstances. The challenge this raises is not unique to the US, however variances in constitutional design and political culture will understandably impact the practical reality of how different jurisdictions grapple with these questions. This article concludes with a reflection on the comparative treatment of these issues under the Australian constitutional tradition, suggesting that the US experience with Trump highlights certain advantages offered by Australia’s parliamentary system.

The 25th Amendment: Historical background and textual overview

The US Constitution originally addressed questions of presidential succession and inability generally but left much ambiguity regarding the practicalities of such a transition. Article II, Section 1, Clause 6 designated that:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President …⁴

However, this left unclear: whether a Vice President ‘became’ or simply ‘acted’ as President; the process for determining presidential inability; when a previously incapacitated President could take back power; and what should happen if a vacancy arose in the office of the Vice President only. Perhaps due to this ambiguity, historically Article II was rarely invoked, notwithstanding several instances where issues of presidential disability were implicated.⁵

In the mid-20th century, various events highlighted the need for clarity on these questions. The assassination of US President John F Kennedy in 1963 was a particular catalyst for reform, occurring against the backdrop of Cold War anxiety and a potential nuclear threat.⁶ Motivated by this incident, the 25th Amendment was passed by Congress on 6 July 1965, and came into effect upon its ratification on 10 February 1967.

Section 1 of the 25th Amendment clarifies that ‘[i]n case of the removal of the President from office or of his death or resignation, the Vice President shall become President’.⁷ This codified a precedent set by President John Tyler in relation to these issues.⁸

Section 2 introduced a mechanism for filling a vice-presidential vacancy, whereby ‘the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress’. Section 2 has been invoked a number of times previously, including in 1973⁹ and 1974.¹⁰

Finally, sections 3 and 4 address the situation where a President is ‘unable to discharge the powers and duties of his office’, establishing two procedures for temporarily transferring authority to the Vice President as Acting President in these circumstances.

Under section 3, the President can temporarily transfer authority to the Vice President as follows:

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

To date, section 3 has been invoked three times, to cover short periods when the President has undergone routine medical procedures involving anaesthetic.

More controversially, section 4 addresses the situation where a President is ‘unable’ but cannot (or will not) step aside and provides for temporary involuntary suspension from office. The process is initiated by the Vice President and (1) a majority of Cabinet secretaries;¹¹ or (2) an alternative body as provided for by Congress,¹² who can submit a written declaration to the President pro tempore and Speaker that the President is ‘unable to discharge the powers and duties of his office’, at which point the Vice President immediately takes over as Acting President.

Significantly, however, this mechanism only allows for a temporary transfer of power, and it is open to the President to contest such a declaration by asserting that they are again ‘able’.¹³ If this assertion is disputed by the Vice President and Cabinet, they have four days in which to make a counter-declaration that the President remains ‘unable’, at which point the issue must be decided by Congress within 21 days.¹⁴ If both chambers vote by two-thirds majorities that the President is ‘unable’, the Vice President continues as Acting President. If this high threshold (in practice requiring bipartisan support) is not met, the President immediately resumes the powers and duties of office.

Although the Vice President is designated first in the presidential line of succession under Article II, Congress is authorised to legislate for the subsequent order. Under the Presidential Succession Act of 1947, the Vice President is followed by the Speaker, the President pro tempore, and then members of Cabinet in the order of the establishment of their department.¹⁵ It is designated that officers beyond the Vice President are acting as President when filling a vacancy.

The 25th Amendment and US President Donald Trump

Although rarely invoked in practice, the 25th Amendment received renewed attention during the Trump presidency, in part due to its frequent fictional depictions in television shows including The West Wing,¹⁶ Designated Survivor,¹⁷ and House of Cards.¹⁸ In response to what some perceived to be Trump’s erratic behaviour and rejection of political and constitutional norms, various critics asserted that he was ‘unfit’ for office, arguing that section 4 might provide a mechanism for his removal.¹⁹ Such calls were heightened following Trump’s behaviour disputing the 2020 presidential election result and in connection with the 6 January 2021 attack on the Capitol, and were even formalised in a House Resolution calling on Vice President Mike Pence to activate section 4.²⁰ As noted above, a further aspect of the 25th Amendment (section 3) was earlier brought into focus in light of Trump’s COVID-19 diagnosis in late 2020 and the prospect that others (including Pence) might also become infected.

Although not ultimately invoked during President Trump’s tenure, these events raise the important constitutional hypothetical – could (or should) the 25th Amendment have been exercised during the Trump presidency?

Should Trump have invoked section 3?

In October 2020, President Trump was hospitalised and taking medication with potential side effects to manage his COVID-19 symptoms. On Sunday 4 October, it was revealed by the President’s medical team that Trump was treated with the steroid dexamethasone – a drug with potential side effects including mood swings, psychotic episodes, and paranoid states.²¹ It was also disclosed that Trump received a range of other therapeutic drugs (including experimental treatments), although the true severity of the President’s condition was unclear.

President Trump is not the first world leader to be hospitalised following a COVID-19 diagnosis. In April 2020, British Prime Minister Boris Johnson was admitted to intensive care and ultimately required a ventilator, resulting in First Secretary of State Dominic Raab being ‘deputised’ and temporarily taking over prime ministerial duties.²² In contrast, there is no indication based on media reporting that the possibility of invoking section 3 was considered by the Trump administration. Indeed, on 4 October, National Security Advisor Robert O’Brien stated that even in light of the President’s hospital admission, a transfer of power to Vice President Mike Pence was ‘not something that’s on the table’.²³

There is precedent for a President undergoing a medical procedure to invoke section 3. On 13 July 1985, President Ronald Reagan informally invoked the provision to transfer power to Vice President George HW Bush for eight hours when undergoing surgery. Similarly, President George W Bush formally activated section 3 on two instances (in 2002 and 2007 respectively) to temporarily transfer power to Vice President Dick Cheney when undergoing routine colonoscopies.²⁴ Given the powerful position occupied by the US President (for example, controlling the nuclear launch codes), there are risks associated with a President being potentially incapacitated for even a short period without adequate contingency planning, or somewhat impaired due to medical treatment, but still in charge of government. It is therefore notable that implementation of section 3 was not even considered in Trump’s case, given that this was arguably the type of circumstance to which the framers contemplated it might apply.

That said, it is a rarity in the US for power to be transferred to a Vice President, and there may be undesirable consequences (such as national security implications) from making such an announcement. Indeed, in all three instances where section 3 was previously invoked, the President was under general anaesthetic (ie, unconscious), distinguished from Trump’s situation. Although this doesn’t necessarily outweigh arguments for transparency in decision-making and certainty in leadership from a good governance perspective (or the potential for concerns to be countered by clear public messaging), it is important to appreciate these considerations when scrutinising this event from an Australian perspective.

In practice, there are also strong political motivations that might deter a President from using section 3. As presidential disability scholar Brian Kalt observes:

Invoking Section 3 is completely up to the president. But for a variety of reasons (the desire to project strength, to maintain continuity and calm, optimism about one’s health, denial about one’s health, paranoia about losing power), presidents generally are unlikely to use this provision unless it is absolutely necessary.²⁵

Such considerations (particularly concern about being perceived as weak and a desire to project a robust image) would arguably be particularly acute in the context of campaigning for an imminent election – the situation facing Trump in October 2020.

Should section 4 have been invoked to involuntarily suspend Trump from office?

Section 4 has never been invoked to date, and is therefore untested.²⁶ A challenge in assessing its potential application to President Trump is the fact that the requisite standard (‘unable to discharge the powers and duties of his office’) is not defined – it is not clear from the text whether inability for these purposes covers psychological or political competency and temperament for office, or is limited to physical or mental incapacity.

Those supporting a narrower approach tend to argue the drafters understood ‘inability’ to concern quasi-medical questions or the literal inability to discharge presidential duties – paradigm examples being a presidential coma or kidnapping. According to John Feerick (a legal scholar closely involved in the 25th Amendment’s drafting), ‘[c]ircumstances commonly thought to fall under [sections 3 and 4] include cases of mental inability, as well as situations where the President might be kidnapped or captured, under an oxygen tent at the time of enemy attack, or bereft of speech or sight’, while, ‘unpopularity, incompetence, impeachable conduct, poor judgment and laziness do not constitute an “inability” within the meaning of the amendment.’²⁷ Writing in 2019, Brian Kalt suggested these principles could be applied in Trump’s case as follows:

The animating principle of Sections 3 and 4 is continuity. This goal is limited: preventing the helm from being unmanned when a president is completely incapacitated. The point is not to oust presidents who are ‘unable’ in the sense of being lazy, incompetent, or screwy. If the president cannot contest the action (because, say, he is in a coma), Section 4 is designed to transfer power instantly and uncontroversially. But if the president can respond – and whatever else you can say about Trump’s actions and deportment, he surely would respond – Section 4 is designed to protect the president by making it very hard to displace him.²⁸

Conversely, the plain language of section 4 is not limited to physical or mental incapacity, and (as Feerick observes) the drafting choice to leave ‘inability’ undefined was arguably intended to ‘allow[ ] for flexibility and discretion.’²⁹ It has been suggested in a recent work on the subject that:

[T]hose deciding whether a President is ‘unable to discharge the powers and duties of his office’ should focus on the overall effects of the inability – whether the totality of the circumstances suggests that inability prevents him from discharging the powers and duties of the presidency – rather than the specific characteristics of the inability itself.³⁰

Drawing on these considerations, earlier in Trump’s presidency numerous critics argued it would be constitutionally permissible to use section 4 to remove Trump from office, on the grounds that he was a ‘manifestly unfit’ President lacking the competency to practically perform his role.³¹

The difficulty with many such arguments is that they often minimise the ‘constitutional gravity’³² and profound democratic consequences involved in suspending an elected President from office, and precedent this would set if exercised in Trump’s case. As Jonathan Turley has argued (reflecting on events as they stood in 2017), while Trump may possess objectional behavioural traits, many of these were already exhibited (and therefore known to voters) before the 2016 election, and may even be shared by other political actors:

Narcissistic Personality Disorder is defined as ‘grandiosity, a lack of empathy for other people, and a need for admiration,’ which, indeed, describes Trump. But let’s face it: If we started removing public servants because they were narcissists, the nation’s Capital might become a virtual ghost town. In DC, the question isn’t who fits that definition? but, who doesn’t?³³

The complexity and ambiguity surrounding section 4’s operation (and risk that ‘its invocation might arguably precipitate a constitutional crisis’)³⁴ further caution against its use absent the most extreme circumstances. Finally, as section 4 does not provide a permanent remedy for removing a President, if it had been exercised early in Trump’s presidency, it would be open to Trump to repeatedly declare himself again ‘able’ (subject to the timeframes discussed above). Even if the high thresholds for congressional supermajorities and vice-presidential/Cabinet support were met initially, this process could be repeated roughly every four weeks, creating further uncertainty and a lack of finality.³⁵

For these reasons, if the remedy sought was Trump’s permanent removal and/or disqualification, impeachment would arguably have been the more appropriate mechanism. Under the US Constitution, a President can be removed from office if they are (1) impeached by a simple majority in the House of Representatives on the grounds of ‘Treason, Bribery, or other high Crimes and Misdemeanors’; and (2) convicted of these offences by a two-thirds supermajority in a subsequent Senate trial.³⁶ Significantly, in passing judgment, the Senate can also vote to disqualify a President from holding future office.

Notwithstanding the above, Trump’s post-election behaviour (in particular, his seemingly irrational refusal to acknowledge the outcome in the face of the facts; public statements directly undermining the legitimacy of the US democratic process; and apparent preoccupation with this issue despite there being a national COVID-19 health crisis) and actions in connection with the 6 January Capitol riot (arguably inciting, at least implicitly, an attack on a coordinate branch of government before failing to take immediate and direct steps to discourage the violence) were of such an extreme and unprecedented nature that use of section 4 arguably became more plausible. The longer timeframes involved in the impeachment process certainly lend weight to this argument. Despite having less than two weeks left in office, if Vice President Pence and the Cabinet had formed the view that Trump posed a danger (even for this short period) and was demonstrating an inability to appropriately discharge his presidential responsibilities, invoking section 4 could have provided an immediate solution for suspending Trump for the remainder of his term until Biden’s inauguration.³⁷

Australian reflections

The events discussed above raise important questions for jurisdictions such as Australia to consider. While there is some commonality between the issues implicated by these developments and challenges facing other legal systems, they also highlight stark differences in constitutional design and political culture between Australia and the US. As with any form of comparative analysis, to draw meaningful insights from the US experience with Trump it is important to account for the role that constitutional ‘difference’ may play. This is particularly the case in the context of executive power, where there are more fundamental variations between the Australian and US constitutional traditions than in other areas.³⁸

For example, there is no constitutional actor in Australia directly analogous to the position of President Trump. Being a republic, the US President is both head of state and head of government, and is (in effect) directly elected for the role.³⁹ Under the US tripartite system of government, the President and their Cabinet sit as a completely separate branch to the legislature, and do not depend on the confidence of Congress to stay in power. Indeed, it is relatively common for one party to control the executive branch (ie, presidency) and another one or both houses of Congress.

In contrast, while the Australian Prime Minister is head of government, the formal head of state is Queen Elizabeth II. Reflecting Australia’s Westminster inheritance, the Prime Minister’s powers and functions (along with that of Cabinet) are governed by unwritten constitutional convention, and are not set out in the text of the Australian Constitution.⁴⁰ Australia’s Prime Minister is not directly elected for the role – rather, in accordance with the principle of responsible government, they are a member of Parliament selected to lead as they command the confidence of the majority party or coalition in the House of Representatives. Further, in Australia there is no legislative line of succession. Pursuant to convention, the Deputy Prime Minister regularly takes on responsibilities as Acting Prime Minister if the Prime Minister is temporarily unable to serve (for example, if they are overseas, ill, or on leave).⁴¹ In the more extreme case of death of a Prime Minister in office,⁴² the Deputy Prime Minister will generally be appointed by the Governor-General until the relevant party can formally elect a new leader.⁴³

Relevantly, the mechanism for removing a Prime Minister is a ‘vote of no confidence’ in the House of Representatives, requiring a simple majority vote. They can also be forced to resign following a leadership change in the majority party or coalition, as has occurred on a relatively frequent basis since the 2007 federal election.⁴⁴ In contrast with the 25th Amendment, no standard is required to initiate these processes – they are not limited to questions of quasi-medical ‘inability’, and can be invoked in response to explicitly moral or political considerations regarding competency and performance.

The US experience with President Trump arguably highlights some advantages offered by Australia’s parliamentary system. On the one hand, in light of the US President’s popular mandate (in contrast with the Australian Prime Minister, who is selected by the party room) and symbolic role as head of state,⁴⁵ it is understandable that there are very limited circumstances in which they can be removed or suspended from office early – namely the 25th Amendment or impeachment followed by conviction in the Senate. Although these two mechanisms bear some similarity to a no confidence motion (in that they both involve a vote in the legislature), as they require significantly higher majorities and the support of both chambers (effectively necessitating strong bipartisan support) and can only be invoked on the very narrow grounds of impeachable offences or presidential ‘inability’, in practice there are substantial practical and political constraints on their successful implementation.

While this does offer stability and continuity in executive leadership, as a consequence a President could remain in power for a full four-year term despite losing significant popular support or demonstrating a lack of competence for the role. As expressed by constitutional scholars Jack Balkin and Sanford Levinson, in contrast with jurisdictions that have a ‘no confidence’ mechanism, in the US ‘we must endure disastrous presidents in office no matter how much damage they may cause until the next scheduled election’.⁴⁶ This is exacerbated by the fact that due to the US electoral college system, a President can be elected with less than an absolute majority of the popular vote – as was the case with Donald Trump in 2016.⁴⁷

In contrast, as there are less impediments to leadership change under Australia’s parliamentary system, this allows for greater ease in removing an underperforming or unpopular leader. This is not to deny that there may be downsides associated with the Australian approach – for example, uncertainty or contestation regarding the scope of a convention (as highlighted by the controversy surrounding the 1975 Whitlam Dismissal)⁴⁸ or even risk of political instability. However, on the specific question of addressing an incompetent (or even dangerous) head of government (the scenario many argued was raised by the Trump experience), this has the advantage of allowing for greater responsiveness to concerns of both the electorate and other political actors, and more timely and direct accountability – even during a parliamentary term.

Conclusion

The US experience with President Trump raises important questions for other jurisdictions to consider. The age of the 46th US President Joe Biden (77 years old at the time of the 2020 presidential election) demonstrates the ongoing relevance of questions surrounding the 25th Amendment, leadership removal and succession. From an Australian perspective, although these comparative developments highlight some advantages offered by Australia’s parliamentary system, they also point to the need for constant critical reflection on how our own democratic institutions would withstand a time of constitutional crisis.

Footnotes

Acknowledgments

The author wishes to thank Tim Clark and the two anonymous reviewers for providing generous and constructive feedback on an earlier draft. All errors remain my own.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Jemimah Roberts

1

See charges in ‘Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors’, HR Res 24, 117th Congress (2021) (‘Shortly before the [6 January] Joint Session [of Congress] commenced, President Trump, addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that “we won this election, and we won it by a landslide”. He also willfully made statements that, in context, encouraged – and foreseeably resulted in – lawless action at the Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore”.’)

2

Nancy Pelosi, Speaker of the US House of Representatives, ‘Transcript of Pelosi Weekly Press Conference Today’ (Press Release, 7 January 2021) .

3

‘Tonight, @FLOTUS and I tested positive for COVID-19. We will begin our quarantine and recovery process immediately. We will get through this TOGETHER!’: @realDonaldTrump (Donald J Trump) (Twitter, 2 October 2020, 12:54 am EST) .

4

United States Constitution art II § 1 cl 6 .

5

The disabilities of Presidents James Garfield and Woodrow Wilson are prime examples. After he was shot on 2 July 1881, President Garfield was in a coma for 80 days before he died, yet the Vice President declined to assume presidential duties during this period. Similarly, President Wilson experienced a severe stroke in 1919 with debilitating side effects but, again, was not replaced by the Vice President.

6

Although President Kennedy died shortly after being shot, the incident highlighted the uncertainty that would have arisen if he had lingered in a coma for a period afterwards.

7

United States Constitution amend XXV (Emphasis added).

8

Following the death of President William Henry Harrison in April 1841, Vice President John Tyler assumed the role of President and took the Oath of Office, setting the unofficial ‘Tyler precedent’ generally followed by subsequent Presidents and Vice Presidents before the 25th Amendment’s ratification (for example, following President Kennedy’s assassination).

9

Gerald Ford became Vice President through this mechanism after the incumbent Spiro Agnew resigned.

10

Nelson Rockefeller was nominated to fill the vice-presidential vacancy under section 2 when Ford subsequently took over the presidency following President Nixon’s resignation.

11

‘[A] majority of … the principal officers of the executive departments’.

12

‘[O]r of such other body as Congress may by law provide’. To date Congress has not legislated for such a body (although a proposal was put forward by Congressman Jamie Raskin in October 2020 to establish a ‘Commission on Presidential Capacity to Discharge the Powers and Duties of Office’).

13

By providing a written declaration to the President pro tempore and Speaker to this effect.

14

‘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 …’.

15

Under the current line of succession, it is therefore possible for a member of the opposing political party to take over as Acting President if they hold one of these legislative roles (for example, Democrat Speaker Nancy Pelosi was next in line after Vice President Pence during the latter period of the Trump presidency).

16

In the Season Four finale (‘Twenty Five’), Democrat President Josiah Bartlet decides to ‘invoke the 25th Amendment’ and temporarily step down from office following the kidnapping of his daughter. As the office of the Vice President is vacant at the time, Bartlet is temporarily replaced by the next in line for succession – the Republican Speaker Glen Walker.

17

In Season 2, Episode 18 (‘Kirkman Agonistes’) President Tom Kirkman is threatened with removal from office under the 25th Amendment on the grounds of mental unfitness after recordings of his therapy sessions are leaked.

18

In Season 4, after President Frank Underwood is shot and subsequently undergoes emergency surgery, the 25th Amendment is invoked and Vice President Donald Blythe is sworn in as acting President until Underwood recovers. Later, in Season 6, Vice President Mark Usher holds a meeting with President Claire Underwood’s cabinet with the intention of invoking the 25th Amendment and removing her from office. These attempts are thwarted as Underwood sacks the entire cabinet before the provision can be exercised.

19

For a comprehensive overview of such claims in the media in the first year of the Trump Presidency see Joel Goldstein, ‘Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4’ (2018) 21(1) Journal of Constitutional Law 73, 79–80.

20

‘Calling on Vice President Michael R Pence to convene and mobilize the principal officers of the executive departments of the Cabinet to activate section 4 of the 25th Amendment to declare President Donald J Trump incapable of executing the duties of his office and to immediately exercise powers as acting President’, HR Res 21, 117th Congress (2021).

21

MIMS Online ‘Dexamethasone’ entry mimsonline.com.au (‘4.8 Adverse Effects (Undesirable Effects) … Central nervous system: Large doses can cause behavioural and personality changes ranging from nervousness, insomnia, euphoria, or mood swings to psychotic episodes which can include both manic and depressive states, paranoid states and acute toxic psychoses.’)

22

For a concise discussion of the historical precedent and constitutional implications of Johnson’s illness see Luke Reader, ‘With Boris Johnson in intensive care, who runs the UK?’, The Conversation (8 April 2020) .

23

Margaret Brennan interview of Robert O’Brien, Face the Nation (CBS News, 4 October 2020)

24

See Thomas H Neale, Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress’ (Congressional Research Service, 5 November 2018) 4–6

25

Brian Kalt, ‘Ask the Expert: Trump, COVID and the 25th Amendment’ (2 October 2020)

26

Although the possibility of declaring a presidential disability under section 4 was reportedly considered in 1987 in relation to President Ronald Reagan, due to concerns that the President was ‘inattentive and inept’: Neale (n 24) 17.

27

John Feerick, ‘Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment’ (2010) 79(3) Fordham Law Review 907, 926 (footnotes omitted).

28

Brian Kalt, ‘How TV Taught America Bad Constitutional Law’, The Atlantic (online, 24 December 2019) . For a more detailed treatment of these issues see Brian Kalt, Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment (Oxford University Press, 2019).

29

John Feerick, ‘The Twenty-Fifth Amendment: An Explanation and Defense’ (1995) 30 Wake Forest Law Review 481, 502.

30

Rule of Law Clinic, Yale Law School, The Twenty-Fifth Amendment to the United States Constitution: A Reader’s Guide (18 April 2018) 20

31

See, eg, Paul Campos, ‘A Constitution for the Age of Demagogues: Using the Twenty-Fifth Amendment to Remove an Unfit President’ (2019) 97(1) Denver Law Review 85.

32

Rule of Law Clinic, Yale Law School (n 30) 4 ('issues of presidential inability raise questions of the utmost gravity’).

33

Jonathan Turley, ‘How Do You Get Rid of Trump? An Election, Not the 25th Amendment’, The Washington Post (online, 20 October 2017)

34

Neale (n 24) 31.

35

‘Since an inability decision does not result in the President’s removal from office, there is nothing to prevent him, after an adverse congressional decision [,] from issuing another recovery declaration, thereby activating the process again.’ John Feerick, The Twenty-Fifth Amendment: Its Complete History and Applications (Fordham University Press, 2014) 120.

36

President Trump was impeached by the US House of Representatives on 18 December 2019 (on the grounds of abuse of power and obstruction of Congress) and for a second time on 13 January 2021 (on the charge of ‘incitement of insurrection’). In relation to his first impeachment, he was acquitted on both counts by the Senate on 5 February 2020. At the time of writing, a Senate trial has not yet taken place in relation to his second impeachment (raising the question of whether it is constitutional for a former President to be tried). He is the third President to be impeached after Andrew Johnson (1868) and Bill Clinton (1998). Richard Nixon resigned before he could be impeached in 1974, and Trump is the first to be impeached twice.

37

If Pence and the Cabinet had initiated section 4, this would have immediately suspended Trump, with Pence taking over as Acting President. If disputed by Trump, given there were less than two weeks remaining in his term, Congress could have simply allowed the clock to run out on the 21 days in which it had to decide the inability issue.

38

Constitutional ‘difference’ between Australia and the US arguably poses less of a challenge to comparative insights in other areas (for example, on structural questions concerning federalism). For an argument to this effect in the context of freedom of political communication, see Jemimah Roberts, ‘Constitutional “Borrowing” and Freedom of Expression: Can Australia Learn from the US First Amendment?’ (2019) 44(1) Alternative Law Journal 56.

39

Despite the common perception that the US President is popularly elected, technically they are selected by the Electoral College.

40

Although the Australian Constitution does not directly address the principle of responsible government, section 64 does refer to the requirement that ministers be members of (and therefore accountable to) Parliament.

41

‘It is the practice for the Deputy Prime Minister to be Acting Prime Minister when the Prime Minister is absent from Australia or absent on account of leave (for illness or brief recreation periods).’ House of Representatives Practice (Department of the House of Representatives, 7th ed, 2018) 61 .

42

As has occurred on three occasions previously: Joseph Lyons (died in office in 1939); John Curtin (died in office in 1945); and Harold Holt (missing, presumed dead, 1967).

43

‘The Deputy Prime Minister would normally be commissioned to become Prime Minister in a caretaker capacity in cases of emergency, for example, the death of the Prime Minister.’ House of Representatives Practice (n 41) 61.

44

Australia has had six Prime Ministers since the 2007 federal election due to party leadership changes: Kevin Rudd (twice), Julia Gillard, Tony Abbott, Malcolm Turnbull and Scott Morrison. See Cathy Madden, Party Leadership Changes and Challenges: A Quick Guide (Australian Parliamentary Library, 29 July 2019)

45

‘Presidents who combine the attributes of head of government with head of state have the additional advantage of being symbols of the nation itself and are well-suited to garner public support and frame social realities.’ Sanford Levinson and Jack Balkin, ‘Constitutional Dictatorship: Its Dangers and Its Design’ (2010) 94 Minnesota Law Review 1789, 1858.

46

Ibid 1860–1.

47

In 2016, Democrat presidential candidate Hillary Clinton received almost 3 million more popular votes than Donald Trump.

48

A central question in dispute was whether a government requires the support of the House of Representatives alone (which Prime Minister Whitlam commanded), or if a Prime Minister who cannot obtain supply through the Senate can be dismissed. Similarly, Professor Twomey notes circumstances where a decision over a prime ministerial appointment may be unclear – for example, the difficulties that may face the Governor-General in the short term in identifying an appropriate successor for a Prime Minister who dies suddenly in office: Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018).

Jemimah Roberts is an Associate Lecturer in Macquarie Law School, Macquarie University.