Can one of my more knowledgeable readers answer this?
If there are 23 cabinet positions, of which, say, 6 are vacant and 17 are occupied, what counts as a majority for purposes of the 25th amendment? Is it half of 23 or half of 17?
I realize there are additional ambiguities in the 25th amendment, which talks about “principal officers of the executive department”, without ever using the word “cabinet”. But I think I understand those issues. I’d just like an answer to the specific question above.
My guess is that an acting cabinet officer can act as a cabinet officer, and vote on a 25th amendment issue. But I don’t know.
This is all very silly, as nobody really thinks that “the President is unable to discharge the powers and duties of his office”.
It would be doing Trump a favor, as it is widely believed that Trump cannot pardon himself, and that if Pence were given the power, he would pardon Trump.
“if Pence were given the power, he would pardon Trump.” Are you sure?
I wonder how Pence views this. He seems a pretty conventional, stick to the norms sort of person.
25th is for “unable” to discharge the powers and duties, not doing it badly.
The steps are VP and majority of cabinet declares him unable, Trump has 4 days to disagree. If cabinet still insist then VP stays if 2/3 majorities in both houses agree. Without 2/3 majority in both ouses Trump is back. Trump can continue to disagree and force new votes.
The 4 day timing is ambiguous, and some interpret that Trump could re-take power immediately if he disagrees. He would almost certainly do that, and then fire the cabinet. This would leave it uncertain who was president and who was in the cabinet. Best case, pence is acting president for a week or so then Trump wins vote and is back (2/3 majority is very unlikely). Maybe it would be enough if the vote could be delayed until after Jan 20. Worst case, Pence is president for 5 minutes and there is even more chaos.
Impeachment only requires majority in House and 2/3 in Senate, a much lower hurdle. Impeachment also seems a more appropriate option, given the allegations are more of misconduct than disability. I am not saying that there should be impeachment, just that this seems a more appropriate and easier remedy than 25th.
It seems I was in error. Apparently a simple majority in one house would allow VP to remain as acting president for 25 days, which would be enough. In this case, 25th may be a much easier route than impeachment if the cabinet agree. It is still fraught with risk.
Not only do I not know the answer to this question, I don’t even know who the “principal officers” would be. Do only senate-confirmed secretaries count, or also acting secretaries? The latter seems like a big loophole, but it doesn’t seem like we have actual guidance on this.
Ken White addressed this on the “All the President’s Lawyers” podcast and the answer cannot be stated with any certainty at the moment, it will have to be fought in court.
From what I can tell the current strategy would be to have a majority regardless of whether you count the full 23 or the 17 so the point is moot.
“Are you sure?” No. I merely meant that it is widely believed that Pence might pardon Trump.l I have no idea if he would or not.
“it will have to be fought in court.” There is a good chance that the Supreme Court would refuse to hear it, and no one would pay any attention to a lower court. This would be a political question of the sort that is outside court jurisdiction.
According to Legal Eagle, it is unclear. Nobody has tested whether acting heads can vote, and the law does not make it clear. So who knows? The advantage of 25th over impeachment is that it is immediate. Impeachment would take a while. Seriously, I doubt either will happen. Unless Trump tries something extreme, and who would rule that out?
As several before me have said, this has never been decided by the court, and nobody can give a confident answer until it has, like the questions brought up in (my recommendation) Brian Kalt’s “Constitutional Cliffhangers (which actually has a chapter dealing with the 25th).
If I got appointed to the Supreme Court (and nothing else would put me in the role of being “more knowledgeable”), I’d say half of 23 (I believe the actual number is half of 15), since the amendment calls for the “principal officers” of each department, and I’d accept whoever was in charge of the department as “principal officer”.
Severe mental illness obviously qualifies for the 25th amendment; and Trump clearly meets the DSM V criteria for Narcissistic Personality Disorder.
Aside from that, Trump isn’t actually performing the duties of his office, and hasn’t, for a while.
It’s a bit disgusting, to be honest, to see all those GOP rats leaving the sinking HMS Trump, pretending to be shocked, SHOCKED at the fact that the guy is mentally ill and actually wants to overthrow the republic.
He’s been talking about overturning the election and imposing martial law literally for MONTHS now.
The only thing that was shocking here was the lack of law enforcement response and the fact that apparently, the Capitol building doesn’t have armored glass windows.
The rest was just Trump being Trump and his supporters being the insane, gullible mob that they are.
@Jens,
Elsewhere the constitution calls for principal officers to be confirmed by the senate. You’d be using a different definition for the purposes of the 25th. I’m not saying that’s wrong but it would require an explanation. It’s also a huge loophole, encouraging presidents not to fill the slots with people acceptable to the senate but instead only loyal to him personally, defeating the 25th.
@HH
I don’t see “principal officer” in a lot of places…it is mentioned once in the actual constitution, not at all in the Bill of Rights, and twice in the 25th amendment (and no others).
I don’t see it as a loophole; he can’t appoint ANY officers by himself unless he had approval of congress (“he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments”), except when the Senate is in recess — and then for a presumably short time (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session”).
But it DOES mean (to me) that if he fires the Secretary of State, the department’s #2 person, however they got into office, would cast the vote, as the new “principal Officer”.
Of course, the ability to do a text search (which I have) is a poor substitute for a degree in constitutional law (which I do not have) :-)
#11. I am sure there are those with a degree in constitutional law that will come to different conclusions from each other.