Let's Think About Adding Presidential Recall To The Constitution

At present the only ways to remove the president legally before the current term ends are impeachment or a declaration of disability under the 25th Amendment to the U.S. Constitution. Two presidents (Andrew Johnson and Bill Clinton) were impeached, but neither was convicted by the Senate, and the 25th Amendment has never yet been invoked.

Richard Nixon resigned when told by Republican party leaders that he was going to be impeached.

Perhaps we should consider amending the Constitution to allow voters to recall the president. A number of states allow recall of their governors, although only two governors have ever been successfully removed by this process.

A federal amendment would provide an option in between the drastic steps of impeachment or declaration of disability, on the one hand, and continuation of a president in office in the face of major problems on the other.

Obviously such an amendment could have no applicability to Donald Trump, at least during his current term. It usually takes several years to get an amendment proposed and ratified.

Even if this amendment were added during Mr. Trump's first term, it probably should not be applied to him because that would at least resemble an ex post facto law.

It might not actually be a prohibited ex post facto law because removal from office is not a criminal sanction.

The 22nd Amendment limiting presidents to two terms properly excluded the then current president, Harry S. Truman, from that limit, thus avoiding the appearance of partisanship.

Although this proposal probably has no relevance to the current situation in Washington, D.C.,  the need for it is demonstrated by that situation.

With the exception of the vice president, whose concurrence is required, all the officials who could jointly declare that the president is unable to continue serving are appointed by that president. Political gratitude has cynically been defined as a lively sense of future favors, but at least some of these officials might feel enough gratitude for past favors to shy away from biting the hand appointing them.

The process of impeachment also has major problems.

There's always room to debate just what presidential actions constitute the "treason, bribery, or other high crimes and misdemeanors" for which the Constitution allows presidents to be impeached and, if convicted, removed from office.

If a president has a loyal majority in the House or even a substantial loyal minority in the Senate, removal by this process cannot happen.

With recall, there would be no need to allege illegal behavior by the president.

Loyal support by the president's political allies in Congress could not stand in the way of a recall election by the general electorate. There could be no claim that the recall would nullify the results of an election, since it would itself be an election.

Amending the Constitution is difficult, and it should be. Like all amendments, one providing for recall would need to be carefully drafted.

Properly calibrated constitutional provisions would avoid the danger that recall would be overdone, throwing the government frequently into disarray and confusion. The fact that only two governors have ever been removed this way suggests that proper calibration is not impossible. State constitutions often require a petition signed by substantial numbers of voters to initiate the process, which helps to avoid overusing it.

One nice thing about recall elections is that they pose a straightforward question: retain or fire the official in question. There is no other candidate on the ballot, and if the president is removed the next president is simply the next person specified ex officio by the Constitution or by the Presidential Succession Act of 1947.

Since the president and vice president are normally elected as a "package deal" by the Electoral College, drafters of an amendment to allow recall might want to consider offering voters the possibility of removing both officers.

In this event, the presidency would go to the speaker of the House of Representatives.

One of the advantages of federalism is that the state governments can experiment with new ideas. If an experiment turns out badly it only injures one state. If the experiment works well it can be adopted by other states and by the national government. The "laboratory of federalism" suggests that recall can be a useful tool in our political kit and deserves serious consideration for being added to our national Constitution.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.