Everyone seems to be asking this, so let’s just tee it up, okay? Then I don’t have to answer it in the comments of a million different threads on a million different posts on a thousand different blogs.
The 25th amendment doesn’t mention Cabinet Secretaries. It mentions “principal officers”. These are people who report directly to the President and also do not report directly to anyone else. Let’s look at some examples:
I do not report directly to the President, therefore I am not a principal officer and I am irrelevant to the 25th.
The FBI director routinely reports directly to the President, but also reports to the Attorney General. Therefore the FBI director is neither a cabinet secretary nor a principal officer and is irrelevant to the 25th.
The Ambassador to the United Nations is a position that is frequently a member of the presidential Cabinet (though not currently, as the position was demoted by Trump). However, even when the UNAmb is a member of the Cabinet, that position also reports to the Secretary of State. Therefore the UNAmb can be a Cabinet member, but is never a principal officer and is irrelevant to the 25th.
The Secretary of the Interior is a cabinet member, reports to the President, and does not report to anyone else. The Secretary of the Interior is always a member of the group of principal officers.
In general, those acting secretaries report in exactly the same way as the full secretaries would do, so there’s no reason to think that they would not have a vote on the fitness of a President to serve during the procedures outlined in the 25th Amendment. However, sometimes someone will be the a deputy in one department, but loaned out to be the acting head of another. Imagine a deputy secretary of defense becoming the acting head of Homeland Security or the acting Director of National Intelligence. In that case, they might de facto report to someone other than the President, but as far as their acting role in National Intelligence or in Homeland Security, they are not supervised in their work for that department by anyone other than the President.
The obvious question is, “What happens then?”
Even assuming that the VP and a majority of principal officers voted to remove the president from power, we honestly don’t know. This simply hasn’t been done before. Here’s the thing though: there is no appeal to the courts. If Trump is removed but believes himself to be fit, the procedure would require him to be removed from office, and then (while still removed) file a notice of fitness with Congress. Congress would then be required to rule on whether or not Trump had indeed proved that he was still (or again) fit to serve. There is literally no role for the courts in all this.
The upshot is this: if Pence gets it wrong and gives votes to an acting person who, by law, did not qualify as a principal officer, appealing to the courts would do him no good. He must appeal to Congress, and once Congress rules, any deficiencies in the original procedures undertaken by Pence and the Principal Officers are irrelevant. The word of Congress here is final.
As a separate issue, I’ve noticed some people are confused about timelines. The 25th Amendment gives certain deadlines. Some are worried that this means that Trump cannot be removed from power until the end of all those deadlines. In fact, so long as the VP and principal officers continue to maintain that the President is unfit for office, the President remains out of power until the end of all those deadlines for Congressional action.
The upshot here is that it is possible to remove Trump from power immediately and keep him out of power for the entirely of the next 13 days, even though he does have a right to appeal the action to Congress.
Whoops! And now another question has come up. What happens if a principal officer position is entirely empty (not just an “acting”, but not even an “acting”)? Well, again, we don’t know for sure, but the constitutions specifies a majority of the principal officers. It doesn’t specify a specific number based on the number of jobs that qualify their occupant (when filled) for a vote. My initial reading of that is that it’s a majority of the principal officers that actually exist, not that could exist.
I could, of course, be badly wrong. That said, the only appeal is to Congress, not the courts, and Congress is not required to vote a certain way by any law. This is, effectively, a political appeal, not a legal one. So the same thing said before applies again: deficiencies might exist, but the cure is appeal to Congress, and after Congress has spoken their word is final and any original procedural deficiencies are irrelevant.
NEW THING!
Wonkette just made an error, quoted below, in this post but others might be wondering about similar issues (or even making the same error as Wonkette) so I figured it might as well get addressed here. I’m writing a ton, so I’m just gonna cut & paste my correction from their comments:
Of course, if Pence did invoke the 25th, he’d need a majority of the Cabinet to also agree with him. (Just missed that train, Elaine Chao, DIDNCHA!) Then, when President Stable Genius started frothing at the anus and contesting their decision, the Cabinet would need a two-thirds vote from Congress to finish the job.
Okay this is just not true and misunderstands the 25th.
YES you need 2/3rds of Congress to complete the permanent removal of a President. However Congress has 21 days to act on a President’s appeal of a declaration of non-fitness from the VP & the “principal officers” (not synonymous with the Cabinet, but close). Those 21 days start running from the time that the President submits his appeal in writing to Congress (the appeal being known as a “declaration of fitness”).
HOWEVER, the President is not returned to power pending that appeal. So as long as Congress makes no final decision on the matter, the days continue to run and Trump continues to have no power. Since 13 is less than 21, Trump’s term will run out before Congress’ time of discretion to consider the appeal runs out.
THEREFORE, you don’t need 2/3rds of congress. You just need enough people to delay a final vote, and that can be done without even a majority, so long as you muster enough votes to end any attempt to bring the issue to a final vote, which basically means you need a tie. (It’s the people that are trying to force the final vote that require 50%+1).
This is completely achievable, even if 2/3rds of Congress is not achievable. Trump would basically be temporarily removed, not permanently removed, but it would last until his term is over anyway.
In the comments, Johnson Catman raises a question I have seen elsewhere:
Does the invocation of the 25th Amendment have to come from the VP?
I’ve seen it phrased in several ways, such as “does invocation have to start with…” etc. The literal answer is no. It doesn’t have to “come from” or “start with” the VP. However, unlike the list of principal officers, there is only 1 VP and you need the support of 1 out of 1 VPs for it to proceed. So any principal officer could call people together for a meeting with the purpose of invoking the 25th, but it doesn’t come into play until the VP submits the groups decision in writing to congress. If the VP isn’t willing to do that, and of course the VP knows what will result from that, then the fact that you have a majority of principal officers doesn’t matter.
As a side note, Catman also reports a bit of news I ran across earlier today & just hadn’t managed to record here yet: VP Pence is dodging the calls of Pelosi and Schumer. He literally kept them on hold for 25 minutes before having an aide come on the line to tell Pelosi & Schumer that he wasn’t available (rather than just having the aide say that in the first place). I consider that behavior fucked in many ways, but also cowardly.
Alan Robertshaw, in the comments, had this:
I wonder if Trump might try to broker a deal with Pence. He accepts the 25th in exchange for a guaranteed pardon. Avoids all those issues around the validity of self pardons.
I wonder as well. So far Trump has been more willing to run the risk of an invalid pardon than give up power one minute early. (See the NY Times for its reporting on Trump’s repeated suggestions that he would pardon himself “on his last day in office”.) That said, his plan is emotional and idiotic, and as the possibility that he might face real jail time becomes more and more real in the coming days, he might become more willing to listen to people who are genuinely interested in saving him from that fate.
Of course, I would detest the actions of those people attempting to save Trump from jail, but it’s self-evident that there are people in this country who don’t want Trump jailed and remain sympathetic to him. Some of those might even be among the people who work with him on a daily basis. Flying Spaghetti Monster knows why, since they would know best just how awful he is, but humans are capable of all kinds of demented acts.
Another bit from Alan Robertshaw which has become a question that’s getting traction with others is the question about the 25th’s mention of using some body other than the Cabinet/principal officers to determine when the president is unfit. Unfortunately the wording is this:
such other body as Congress may by law provide
This means that it would have to be a regular bill, passed by both houses of Congress, and then signed into law by the president. The president can veto, of course, and then Congress has the right to attempt an override, but the President has 10 days to veto the bill and can simply decline to sign it without officially vetoing the legislation.
This is known as a “pocket veto”. For Trump it would have the advantage of being equally effective (the law can’t take effect if not signed) while also wasting 10 days compared to a scenario in which he used his veto immediately.
With only 13 days left in Trump’s term of office, and a 10 day delay available at his discretion, plus the various parliamentary procedures required for such a bill, even if they already knew and agreed on the intended composition of such an other body, it couldn’t get enacted before Trump is out of office.
We can, after Biden takes office, create some body other than the cabinet to measure presidential fitness. It would take some legislative work and compromise, but I think it should be done. Trump has shown that we need people that aren’t beholden to the President making these decisions.
As a side note, Congressman Earl Blumenauer has been out front on the issue of passing legislation authorized by the 25th to create a better process. Sending supportive e-mails to his office, even if he is not your representative (his district is in northern Oregon, including a hunk of Portland), could help us modernize the implementation of the 25th and better protect the country from authoritarianism.
Could Congress use section 4 to appoint “such other body”, say for example an ad hoc sub-committee, to “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”
Can that other such body be created by simple majority vote; or do they need a bigger margin? And how quickly could they do that if they decided to?
@Alan:
Unfortunately for the possible speedy resolution of this situation, the 25th specifies:
This means that it would have to be a regular bill, passed by both houses of Congress, and then signed into law by the president. The president can veto, of course, and then Congress has the right to attempt an override, but the President has 10 days to veto the bill and can simply decline to sign it without officially vetoing the legislation.
This is known as a “pocket veto”. For Trump it would have the advantage of being equally effective (the law can’t take effect if not signed) while also wasting 10 days compared to a scenario in which he used his veto immediately. With only 13 days left in Trump’s term of office, and a 10 day delay available at his discretion, plus the various parliamentary procedures required for such a bill, even if they already knew and agreed on the intended composition of such an other body, it couldn’t get enacted before Trump is out of office.
Hmm, ok so that’s probably a non-runner.
But considering impeachment, there’s authority so suggest that, whilst removal from office requires the two thirds majority, disqualifying from further Federal office only needs a simple majority. So could at least ensure he can’t run again.
https://www.law.cornell.edu/constitution-conan/article-2/section-4/judgment-removal-and-disqualification
There is also another option for barring Trump from running again (or otherwise holding any office). There’s a criminal statute (USC 18 §2383 IIRC) that creates the offense of Rebellion & Insurrection.
If convicted of that offense, the fine & incarceratory sentence are discretionary, but the ban on holding future office is mandatory. And as luck would have it, the description of the actus reus is almost a perfect match for what Trump did yesterday:
He spoke to the crowd and almost literally “set them on foot” to invade the Capitol Building. And since it’s a criminal offense upon which he would presumably be tried after leaving office, the trier of fact would be a standard jury from which the prejudiced could, at least in theory, be excluded. This is decidedly unlike a trial in the US Senate where partisanship clearly prejudiced the “jury” of senators.
It looks to me like we have good options. I just wish someone would get a move on.
Pelosi and Shumer have formally requested that the VP and cabinet invoke the 25th amendment. The word sedition was used. Pelosi also called for full accountability for those who attempted to obstruct the certification.
She was quite clear that those who violated their oath of office are going to be prosecuted. I’m thinking that after enduring the vandalizing of both her home and her office, an armed mob, and being kept awake all night by grandstanding traitors she is highly motivated to make sure those responsible receive their just rewards.
Does the invocation of the 25th Amendment have to come from the VP? Because Pence has refused to take calls from Pelosi and Schumer and has opposed any effort to use the 25th Amendment.
I wonder if Trump might try to broker a deal with Pence. He accepts the 25th in exchange for a guaranteed pardon. Avoids all those issues around the validity of self pardons.
@4 but what about A14S3 “… But Congress may, by a vote of two-thirds of each House, remove such disability.”
Wouldn’t it be interesting if we were to discover that, buried deep in the recent omnibus spending bill — the same bill that included the $600 COVID relief payment, and which was far too big for any congresscritters to actually read — was a section establishing an alternative body with 25th Amendment powers?
Do you suppose anybody thought of doing that?