If the VP were to invoke the 25th amendment to remove the President as unfit for office, would acting secretaries be able to consent?

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The 25th Amendment says that the Vice-President, in conjunction with half of the fifteen executive department heads, can declare the President unfit to discharge his duties. Presently only two of the fifteen departments have confirmed heads (Defense and Homeland Security). The other thirteen are headed by acting secretaries (or equivalent).

If the Vice President were to invoke the 25th Amendment, who would actually be required to support his declaration of the President's unfitness? Would eight acting secretaries be sufficient? Or do they count? Would only one of the two confirmed secretaries be sufficient? Or would he have to actually wait until there are at least eight confirmed secretaries?

Stephen Collings

Posted 2017-01-26T18:44:04.670

Reputation: 2 773

You should ask if the acting secretary of a cabinet position is in the chain of succession. I think that would be a more interesting question. Consider the Secretary of State in that chain. At what point after he becomes acting president does his deputy enter the chain so that the next in line is no longer eligible. – sabbahillel – 2017-01-26T19:00:55.653

5I'm not sure why this is getting downvotes. Some constructive criticism please? – Stephen Collings – 2017-01-26T19:06:18.033

A majority must be more than half. So if acting secretaries don't count, and there are only two confirmed heads, then both would have to consent. But the amendment says "principal officers," which doesn't explicitly exclude acting heads, so acting heads probably do count. – phoog – 2017-01-26T19:08:56.240

4@sabbahillel it might be a more interesting question, but it is a completely different question. Whether anyone is in the chain of succession is not relevant to the process of declaring a president unfit for office. – phoog – 2017-01-26T19:11:22.843

1@sabbahillel I agree that's an interesting question. Ask it! – Stephen Collings – 2017-01-26T19:13:53.080

@phoog - So one might want to make sure not to get more Machiavellian nominees appointed before the more compliant ones. Can we say "Constitutional Crisis?" Interesting question. +1 – PoloHoleSet – 2017-01-26T22:45:55.077

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There seems to be a lot of commentary over what would or would not count as "unfit". it doesn't matter, because contrary to what the question asserts, the 25th amendment does not allow removal of a president who is "unfit". The criteria used in the amendment, multiple times, is "unable to discharge the powers and duties of his office"

– Ben Voigt – 2017-01-27T03:15:12.203

Answers

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The 25th amendment does not state "Secretary". It states "Principal Officers". That term is generic and has no Constitutional definition. Therefore, I would imagine that Acting Secretaries would count. However, this has never been tested by SCOTUS so there is no way to know for sure.

Ben Cooper

Posted 2017-01-26T18:44:04.670

Reputation: 693

1The section requiring confirmation in the senate doesn't use the phrase "secretary" either. Because "all other officers of the United States" are appointed with the advice and consent of the senate, anyone who hasn't undergone senatorial confirmation can't count as a "principal officer". – Ben Voigt – 2017-01-27T03:12:13.590

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If the VP were to invoke the 25th amendment to remove the President as unfit for office, would acting secretaries be able to consent?

Yes, this was discussed when considering the Twenty-Fifth Amendment and would seemingly qualify as the "intent of Congress" that acting secretaries would be able to consent.

Referring to the Congressional Research Service report Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress, November 5, 2018 —

Respecting details of the Cabinet’s participation, the House Judiciary Committee’s 1965 report on the proposed amendment stated that in the event of a vacancy in any of the Cabinet offices, "the acting head would be authorized to participate in a presidential disability determination," while Feerick notes that the amendment’s supporters asserted that recess appointees to Cabinet offices would also be eligible to participate in a Section 4 deliberation.

[Feerick refers to John Feerick, who "was primarily responsible for the composition of the 25th Amendment to the United States Constitution."]

Rick Smith

Posted 2017-01-26T18:44:04.670

Reputation: 20 415