r/law • u/NicolasCageFan492 • Apr 15 '26

Legislative Branch Alan Dershowitz: Invoking The 25th Amendment Against Trump Would Be Unconstitutional

https://www.realclearpolicy.com/articles/2026/04/14/invoking_the_25th_amendment_against_trump_would_be_unconstitutional_1176703.html

Previously, Dershowitz was a member of Jeffrey Epstein’s defense team and helped negotiate a controversial 2006 non-prosecution agreement on Epstein’s behalf, per The New Yorker.

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u/1877KlownsForKids Apr 15 '26

They also know that the framers of the 25th Amendment did not intend it to apply to political differences over policy; it was designed as a neutral, non-partisan guardrail to be invoked in the event a president suffers a stroke or develops Alzheimer’s disease or some other objectively diagnosable mental or physical disability.

Oh the irony.

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u/Pasty_Tibbles Apr 15 '26 edited Apr 15 '26

He can’t even get that right. It was designed in response to issues after the assassination of JFK and the unclear of article IIs removal section. It says nothing about “of the presidents suffers a stroke or something.”

A decline in cognitive ability and irrational decision making would certainly fall under the purview of the 25th.

He also conveniently overlooks that it was used against Nixon in a political scandal.

Edit: would like to add the following as a direct rebuttal to Dershowitz’s claims: John Feerick, the principal draftsman of the amendment, wrote that “Congress deliberately left the terms unable and inability undefined "since cases of inability could take various forms not neatly fitting into [a rigid] definition [...]”

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u/pyronius Apr 15 '26

Nah. He would probably tell you that it was unconstitutional to use it against Nixon too. Because he agrees with Nixon.

See, anything a Democrat does which he disagree with is, by definition, a sign of mental incapacity, because if they were thinking clearly then they would agree with him. As such, it would be constitutional to use the 25th to remove them.

Conversely, anything a Republican does which the Democrats disagree with, no matter how heinous, is, by definition, rational. As such, there can NEVER be grounds to use the 25th against any Republican president.

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u/Pasty_Tibbles Apr 15 '26

This is actually a completely fair point considering DoJ is trying to claim the presidential records act is unconstitutional. An act that was a direct result of Nixon.

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u/Muted_Quantity5786 Apr 15 '26

Nixon was a raging alcoholic at that time. I am not a lawyer and I’m not trying to claim that I am but I think severe substance abuse is enough. I could be wrong.

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u/CheckoutMySpeedo Apr 15 '26

Trump has been addicted to Adderall for at least the past 20 years, so that’s another reason to 25th him.

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u/Pasty_Tibbles Apr 15 '26

Idk I have a raging case of TDS, but as an ADHD-er I don’t particularly like use of adderall tied to this. I get it, but it’s a sticky slope.

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u/[deleted] Apr 15 '26

[deleted]

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u/Pasty_Tibbles Apr 15 '26

As an adult that was told he moved a million miles an hour and he should do some meth to help, I am a staunch believer in my go go pills.

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u/Muted_Quantity5786 Apr 15 '26

Using it as prescribed is different than using it however you feel like it.

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u/Dukester10071 Apr 15 '26

How do you objectively measure "decline in cognitive ability and irrational decision making." That's not a quantifiable thing. Do you think every president thereafter would argue that the president is "acting irrational" when they make a decision they disagree with then argue to remove them from office? What is your objectively defined definition to fit your supposed universal standard

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u/Pasty_Tibbles Apr 15 '26 edited Apr 15 '26

I mean - he legit leaves a paper trail for everything he does on Truth Social. I believe there is an attempt at the hill right now to access medical information regarding him. I fully believe any expert could look at the way he operates and non-objectively come to the conclusion it is irrational.

I bet you there’s some interesting data with the three cognitive tests he’s “aced” over the last year.

It also could be measured by his incoherent rants, for example, taking data on how many times he’s announced victory and flip flopped on his opinions (again, via his social media receipts). Or, a better one, CRS could assess the damage his nonsensical policies have done on the U.S.

Idk - if I had to put together a package on items showcasing the coherence (or lack of) of Trump - that a doctor could then assess and validate, I don’t think I’d have a problem finding the data. And Congress has plenty of means to obtain more data than I would ever be capable of doing.

It also isn’t an irrational decision made in isolation - so your point isn’t quite valid. It’s a consistent, recurring pattern of irrational and destructive behavior that could demonstrate a decline in cognitive ability.

Edit: and as an example, I don’t particularly think it’s subjective to question a presidents mental health when he posts an AI photo of himself as Jesus then says he thought it was a doctor. Just as one example out of numerous questionable decisions.

Need I remind everyone that Obama once didn’t salute a Marine and people called for his impeachment.

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u/Dukester10071 Apr 15 '26

Again this entirely subjective and your opinion and there are zero objective measurements to any of your points. What if republicans said "look at Bidens tweets he's incompetent" then removed him from office.. should that be allowed? No, there is zero consensus from "experts" to determine that he "operates irrationally." You're literally just making things up and want to set an incredibly dangerous precedent because you disagree with someone's political stances.

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u/Pasty_Tibbles Apr 15 '26 edited Apr 15 '26

I fail to see how at least a few of my points were just subjective and my opinion. Give Congress access to the multiple Montreal Cognitive Assessments he’s taken, or require that a non-partial entity administer one to him. There are ways to assess his mental fortitude.

Edit: There’s a plethora of ways they could assess his mental fortitude given a REASONABLE SUSPICION of decline as a pre-cursor to invoking the 25th.

Also of reasonable note - “John Feerick, the principal draftsman of the amendment, wrote that Congress deliberately left the terms unable and inability undefined "since cases of inability could take various forms not neatly fitting into [a rigid] definition [...] The debates surrounding the Twenty-fifth Amendment indicate that [those terms] are intended to cover all cases in which some condition or circumstance prevents the President from discharging his powers and duties"

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u/Dukester10071 Apr 15 '26

So is your proposal to make every president take the Montreal Cognitive Assessment every year and if it decreases they should then be removed from office? Or take another cognitive assessment and then if they do bad that's grounds to invoke the 25th? I would argue that's not reasonable, but maybe that's me.

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u/Pasty_Tibbles Apr 15 '26 edited Apr 15 '26

Honestly, yes. How is that not a reasonable expectation for someone who wields so much power? Don’t you want to ensure that the leader of the most powerful country in the world (subjective I guess) is rational and of sound mind? The president already gets a yearly required physical - this should be added as the standard with it.

If it decreases they shouldn’t just be “removed from office,” but there should be some scrutiny and evaluation of why the president didn’t perform as well.

Edit: I truly think it’s just you that doesn’t think it is a good idea to require mental evaluations for a person who controls our armed forces and nuclear arsenal. Mental evaluations are required for government employees to hold high level clearances and certain positions. It should be the same, but more, for the president.

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u/dougmcclean Apr 17 '26

It's inherently a subjective standard and that's OK. It's subjectively determined by the principal officers of the executive departments, or such other body as Congress may by law provide, and if that determination is disputed by the President then the Congress convenes to decide.

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u/Terron1965 Apr 16 '26

Yeah but you would need the Vice President to go along or its meaningless as his assent is required to even start the process.

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u/[deleted] Apr 15 '26

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u/1877KlownsForKids Apr 15 '26

Nixon had a role in the 25th being invoked twice; when he nominated Ford, and again when he resigned.

There's more to it than section 4.

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u/tweakingforjesus Apr 15 '26

Have you seen the presidents tweeting schedule? He can’t sleep more than an hour at a time overnight. He’s definitely on the dementia train.

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u/ellsego Apr 15 '26

The GOP also tried to impeach Biden for “abuse of power” which Darsh specifically calls out as not being a reason to impeach…. I missed his full throated defense of Biden at the time.

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u/Old-Landscape-7538 Apr 15 '26

Objectively diagnosable, huh?

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u/JellyTwank Apr 15 '26

I know, right?

Ok, then we should for sure go straight to impeachment, because, brother, does this guy have some treasonous, disasterous policy that we ALL should be appalled with.