Hunkered Down in Bremerton

The 25th Amendment

There seems to be a lot of confusion about the (XXV) 25th Amendment. Many in the news media claim that it involves the President's Cabinet (it does not) and most ignore the role that Congress can take.

Section I
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section II
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress

Section III
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress

Section IV
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. 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, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

So Let's parse out some of what it says: Section I - It clearly says that if the President is removed from office the Vice President becomes President. Section IV refers to "Acting President". Whether the Vice President becomes President or Acting President is entirely moot in January 2021 since there are only two weeks left in the term.

Sections II and III not apply with what is going on in January 2021.

Secton IV first paragraph does not mention either the cabinet nor a meeting of the cabinet with the Vice President. It requires a written declaraton from the Vice President and the principal officers of the executive departments.

Lets do some additional parsing of what this means. The President's cabinet currently has the nominal heads of the fifteen executive departments plus additional members including the White House Chief of Staff and heads of the Environmental Protection Agency, Office of Management and Budget, United States Trade Representative, Central Intelligence Agency, Office of the Director of National Intelligence, and Small Business Administration. Those members of the cabinet who are not the nominal heads of the fifteen executive departments are not mentioned in the Section IV. and not entitled to be included in any count of a majority of either the principal officers of the executive departments

Carrying this further - of the fifteen executive departments the heads of three of these departments (Defense, Justice, Homeland Security) are in an "acting" capacity only. They have have not been approved by the Senate as the Constitution requires. The three should not be including when determining a majority. Further the Secretaries of Transportation and Education have resigned since January 6. That means that there are only ten constitutionally qualified nominal executive department principal officers. To achieve a majority as Section IV requires would only require the signatures of the Vice President and six addtional "Principal officers of the executive departments". This "written declaration" is sent to the President-Pro tempore of the Senate and the Speaker of the House of Representitives (neither of whom should care about the wishes of acting deparment heads when Trump didn't follow the rules for their nominatino). The Chief Justice may have concerns but he is not part of this process

An important part of Section IV is also missing from most of the news articles that I have read. In lieu of executive department secretary signatures, the Congress can appoint a "body" to sign the written declaration. There is no specificity to this but a "body" could be a group or an individual appointed to such task and should not include the President pro tempore of the Senate nor the Speaker of the House. How this "body' is determined is up to Congress.

Section IV second paragraph explains the method by which the President can re-establish his office. Essentially he has to send a written declaration to Congress and then Congress can have twenty-one days to decide. Even though it would take a 2/3 vote of both houses to prevent the President from reclaiming the office. In the current context this twenty-one day period would extend beyond the January 20 end of term.

If the 25th Amendment is invoked there is no manner in which the Presidency could be reclaimed by Trump without the consent of Congress.

Howard B. Julien

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Updated January 6, 2021