People probably aren’t talking about it because there is little need to. In 4 weeks, Trump will leave office one way or another. People figure, such a short time, might as well just wait it out. It’s not like Trump is starting a war in between.
Apparently there is a ‘one weird trick’ thing going on with the 25th Amendment.
Not that I think this has a snowball’s chance of happening, but if Pence, half the Cabinet, Mitch McConnell, and Nancy Pelosi all agreed that it would be best to scoot Trump out of the Presidency a few weeks early, they apparently could do so.
It’s all in the timing. Let’s look at the text of Section 4:
So Pence and a majority of the Cabinet decide to make Pence the Acting President. Boom, it happens. What next?
So Trump says “no, I’m fine,” and he’s back to being President - unless Pence and a majority of the Cabinet reaffirm, within 4 days, that Trump’s not up to it. (Who’s in charge during those 4 days? IANAL, and I definitely don’t have enough of a lawyer brain to parse that out.)
So glossing over those four days, let’s assume that Pence and a Cabinet majority reaffirm their original declaration by the deadline. Next:
Congress has to get back in the saddle within two days. What next? A three-week period begins, and per the Amendment, it can end in one of two ways: (1) sometime during the three weeks, both Houses vote by 2/3 majority to make Pence the acting President for the rest of Trump’s term, or (2) when the three weeks come to an end, Trump resumes his full powers.
The Amendment does not say that if a House votes and fails to give Pence a 2/3 majority, Trump resumes his Presidency at that point. Maybe a court would say that’s implicit, but it’s one hell of a thing to leave out.
But if Mitch and Nancy both kept their Houses from voting on the issue for three weeks, no question then that Pence would be Acting President for that period.
So if those three weeks started anytime after noon on December 30, and Mitch and Nancy kept things from coming to a vote for that whole time, Pence would be Acting President for the rest of Trump’s term. If Congress was out of session during the holidays, we get an additional two days, taking us back to the afternoon of the 28th. And if Pence remains in charge during the four days between Trump’s declaration that he’s fine, and Pence and the Cabinet’s reiteration that he’s not, then Pence could be Acting President between the afternoon of Christmas Eve and noon on January 20.
Great stuff for a political novel, but no way it happens. But if it did, it would be the cherry on top of this crazy year.
The amendment just gives the Vice President up to four days to refute the President’s declaration that he is fit to serve – he doesn’t have to wait that long. Most likely, immediately after the President declares that he IS fit and takes back power, the VP and majority of the Cabinet would transmit their declaration that the President is still unfit and the VP would immediately take back the reigns until Congress decides the issue.
There’s no reason why either chamber of Congress can’t vote on an issue again, so I would think that the VP would continue to hold power until the 21 days has passed. Especially if Congress remained in session and debating the issue.
That’s the question here: does the President immediately take back power with that declaration, or does he have to wait until four days have elapsed?
There are big potential downsides to each answer. If the President takes back power, you’d have a bizarre tug-of-war where the power went Pres to Veep to Pres to Veep in a matter of hours. (I could see a President waiting until the middle of the night to transmit his declaration by email - doesn’t say how he’s supposed to transmit it - and immediately reclaiming power - doesn’t say the Speaker and Senate President pro-tempore have to receive it first - unbeknownst to anyone, including the veep, until the next morning.)
But it also makes little sense for the President’s status to potentially remain in limbo for up to four days.
Hmm, this is trickier than I first thought. The first part of the sentence is affirmative:
“when” the President transmits his declaration he “shall” resume the powers of the office – which seems to imply that the transfer of power back to the President is immediate. But you’re right that the “unless” undercuts that – the implication of the “unless” is that the transfer back to the President doesn’t happen at all if the VP submits a counter declaration within four days. But you may not know whether the VP will counter within the four days until the four days are up. My guess on thinking about this more is that the VP would maintain power for the reasons you state.
I do think that it’s clear that once the VP submits his counter declaration, he’s clearly the Acting President – he’s met the condition of the “unless” clause that prevents the President from resuming power.
I think you did a much better job of parsing that than I did!
That’s the sort of passage that makes me think, “IANAL, and damn glad of it - math is much easier!”
It is currently complex and nearly impossible. I believe that the correct process for this current case should be…
At this point do we even want the 25th invoked? The first thing Pence will do is pardon Trump. At least for now there is still the chance that Trump will stand for his malfeasance.
Why would Pence want to pardon Trump? If he wants to run for the presidency in 2024, he can only do so if Trump is out of the picture. Trumpniks may be pissed off if he doesn’t, but they have the long-term memory of goldfish.
Too many Trumpists will put up a stink if he doesn’t. It might not matter in four years but I think it will. His primary opponents will harp on how Pence left Trump out to dry.
When someone who likes power refuses easy opportunities to take power, one has to ask “Why?” I have always wondered if Trump has something on Pence to keep him line-With Pence’s squeaky clean moral image it wouldn’t take much of a scandal to hurt him.
Pence invoking the 25th against Trump’s will would hardly be an “easy opportunity,” requiring the cooperation of a majority of the Cabinet as well as supermajorities in both Houses, many of whom have their own reasons for supporting Trump.
Plus removing Trump under the 25th Amendment is certain to alienate his base, which is considerable. They’re not going to like Pence, or anyone else responsible for the move, from then on. And for what? Pence would have the presidency for a month or less.
Some people are talking about it:
And saying pretty much the same thing I did.
Not that the idea was original with me, either.
Pence would not dare to do this.
He’s a coward.
Right now, he’s likely terrified, because he’s facing the the Kobayashi Maru test. I think his only way out at this point is a “medical emergency”. He’s probably trying desperately to catch covid right now.
Agreed. Pence wants to be President someday. He won’t dare cross Trump.
He’s trying to find a way out of this. Apparently Trump doesn’t understand the VP role and has asked why Pence can’t just name him the winner. If he does preside over the count of the Electoral votes, he will give as much time as possible to these objectives and alternatives.
It’s really scary that Trump is that clueless. The only good thing is that it will all be over soon.
Sources say Trump in recent days has brought the matter up to the vice president and has been “confused” as to why Pence can’t overturn the results of the election on January 6.
Trump is a little more than “confused”. He’s in full blown mental collapse.
I honestly don’t understand how anyone, let alone the President of the United States, can be that ignorant. Sure, he may not understand all of the technical workings of the Electoral College, but he has lawyers at his beck and call to answer any constitutional questions he may have. It’s been almost two months since the election so he’s had plenty of time to educate himself, at least when he’s not playing golf. Either his trusted sycophants are constantly feeding him lies, or he is in complete denial refusing to accept reality. My guess is it’s a little bit of both.