Posted on 06/30/2024 3:59:01 PM PDT by scouter
It is important that we all understand how the 25th Amendment works. To this end, please read it. It is pretty easy to understand, but there are some subtleties that are not so obvious. Also, it is not bullet proof. Here's the text: https://constitution.congress.gov/browse/amendment-25/
This thread is to discuss the 25th Amendment, and how it might be invoked and operate both in theory, and in the present circumstances. Please refrain from snarky remarks about President Biden's and Kamala Harris' respective mental abilities, unless it's truly funny in a way we haven't seen before. Not that they aren't warranted. It's just that I'd like to keep this thread focused on how things really work so that we all might learn something and be able to correctly inform our families and friends in the discussions that are likely to occur over the next several months.
To get the discussion going, I'd like to point out several subtleties that are not immediately obvious.
1. If there is currently no Vice President, then Section 4, the Section that addresses a Vice President and the cabinet removing the President's powers and duties, cannot be invoked. It is off the table completely.
2. It is not explicitly stated whether or not the Vice President continues to have the powers and duties of the Vice President while serving as Acting President. For example, it is not clear whether or not the Vice President can cast deciding votes in the Senate, or actively preside over the Senate while serving as Acting President.
3. The 25th Amendment does not "remove" the President. The President continues to be President, and the Vice President continues to be Vice President.
4. When the Vice President is serving as Acting President, he cannot appoint a new Vice President.
5. It is not clear at all what would happen if, while serving as Acting President, the Vice President were to die or resign, or himself become otherwise incapable of carrying out the powers and duties of the Presidency. Because in this situation the President is still alive, the Speaker of the House would NOT become President, and there is nothing to indicate that he would become Vice President or Acting President.
6. Section 4 indicates that 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" may invoke the 25th Amendment. The "principle officers of the executive departments" is the Cabinet. Congress has never by law provided for any other body to have these powers. Theoretically it could could be either house of the Congress, or both houses together. Congress has extremely wide latitude to decide which other body this could be, but they have not done so. It would require a law to be passed in the same manner as all other laws. So for now, at least, it would be the Vice President and the Cabinet.
7. The Amendment provides for the case where the President disagrees with the Vice President and the Cabinet. He can reclaim the powers and duties of his office by simply writing a letter to the President pro tempore of the Senate and the Speaker of the House of Representatives indicating that he is indeed capable of discharging his responsibilities. Once he does, he is back in the driver's seat. There is some disagreement on this point, where some scholars believe that he does not immediately resume his powers and duties, but rather, four days must pass to give the Vice President and Cabinet time to send another letter to the Congress removing his powers and duties. The wording is a bit ambiguous.
8. It could get really nasty. If the Vice President and Cabinet are really at odds with the President on this question, the President could re-claim the powers and duties, and the Vice President and cabinet could take them away again, and then Congress would have to decide by a 2/3 vote. If Congress does not ratify the Vice President and Cabinet's decision within 21 (or 23 calendar days, depending on whether or not Congress is in session), then the President resumes his powers and duties. However, the Vice President and Cabinet could start the whole process over and over again. Of course, if they did, once the President resumed his duties, he could fire the Cabinet and bring in more loyal Cabinet members.
Discuss.
The Democrats who are actually running the country (Obama's crew?) will use carrots and sticks to get Biden to withdraw. Carrots would be a pardon for Hunter, dropping all further charges against him, an "honorable" departure, a pleasant retirement, and silence on his family's corruption. Sticks would be the opposite. Kamala would be his replacement for several reasons. First, she will be easy to control. Second, bypassing her would disaffect all their major constituencies. Third, she would have access to all the money Biden has raised. Anyone else would have to start raising funds from scratch. Fourth, they need her to be on board with the plan.
If Jill refuses to play ball, they will make life very difficult for her. For about a week, maybe two. They'll let it be known to all WH staff that Joe is gone and Jill just needs to receive the message and they are to ignore any instructions she gives, and that if they don't play along, their careers will be over. If that doesn't work then they'll invoke the 25th Amendment, and Kamala will become Acting President, giving her some degree of gravitas and tapping into the honeymoon phase voters usually grant to someone who is "forced" to take over in "emergency" situations.
Another option would be if Joe-Jill agrees to resign. If Joe-Jill gets on board they can frame it as passing the torch on to the next generation, with Kamala having gained the necessary experience over the last 3 1/2 years. If Joe-Jill decides to bow out now, and resign, he can give a Reaganesque goodbye speech, resign for the good of the country, and Kamala can have several months of actually being president, instead of just Acting President, before the election and before her own term begins. Joe-Jill will go down in history as preparing the country for the first woman president, and actually making it happen. Barack will gin up all the enthusiasm they’ll need to get her elected, and he'll still be in control. If Joe-Jill agrees to this, it has the added benefit of not putting her in the position of having betrayed Joe-Jill.
They recognize that this is risky, but I think they may do it because they think it is the only hand they have to play. If so, all of this will happen before the convention so they can have the excitement and celebration kick-off of the new campaign at the convention.
I see the 25th as a convoluted and messy option. Not good for Dems, Repubs and the country.
To make it even more interesting, cabinet members serve at the pleasure of the president. He can fire them at any time.
So if a president gets a hint that a 25A action might be on the way, he could immediately fire the all cabinet members whom he perceives to be disloyal. Then what?
I suppose the only remedy then would be impeachment.
Impeachment and removal only requires a simple majority in the House and a two-thirds vote in the Senate.
It’s EASIER to remove a President through impeachment and conviction than through some kind of bizarre 25th Amendment process.
In addition—though the OP does not want to talk about it—the 25th amendment had a hidden assumption of at least minimal competence and organizational skills of the VP since as a practical matter they would be driving the entire process.
On the contrary, Section 4 was designed precisely for that purpose. In fact, it is purposefully ambiguous by not specifying any medical, legal, or even political criteria for determining he is unable to discharge his powers and duties.
You’re absolutely right. That’s one of its deficiencies. Or is it? Is that a bug or a feature?
Except that impeachment is supposed to involve “high crimes and misdemeanors “, not simple incapacitation or mental decline.
> It’s EASIER to remove a President through impeachment and conviction than through some kind of bizarre 25th Amendment process. <
Yes. Odd, huh?
But the 25A does have one advantage. It can *temporarily* remove a president rather quickly. If the VP and a majority of the cabinet agree, the president is out and the VP is the acting president. Congress isn’t even involved.
But if the ousted president then objects, Congress does get involved. And it becomes a real mess. Sometimes I think the 25A was not thought through very well.
After formal notification, Congress has 21 days to vote to remove the president from office (two-thirds majority required in both House and Senate).
Read it again carefully. He still remains President, but may not discharge the powers and duties. Acting President is not President. Many Vice Presidents have already served as Acting President for short periods of time, able to discharge the powers and duties of the Presidency, but they were not actually President. Even Kamala Harris has done this when Biden was under anesthesia. She is the first woman to have done so, but she is not the first woman President. Even the text of the Amendment continues to refer to the Vice President as Vice President, and the President as President.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
No, that's not true. Read it. It only requires two-thirds vote in both Houses of Congress if the President contests it, AND the Vice President and the Cabinet send another letter within 4 days to Congress saying "no, really, he can't do the job."
So that would mean it could be used between 4pm and 10 am
It really only makes sense in case where the President had a stroke and literally could not function at all.
If Mike Johnson doesn’t at least superficially pursue the 25th, he could be justifiably accused of abdication.
I don’t believe it’ll come down to the 25th being invoked, in a few weeks it will be announced that Joe has died, in bed with Jill, and the last words his broken-hearted wife heard were, “It’s Trump’s fault”.
Virtually impossible for a political tactic...absent stroke or heart attack a lot of Ds would not vote to remove a Prez of their party.
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