Are the voters, for example, clearly designated? Can someone who is, for example, an acting Cabinet secretary vote? If a cabinet post is vacant, can the 2nd in command at that department (a deputy secretary?) vote? Does the VP get a vote? Is it majority rule? Super-majority? Is it a secret ballot? Does Trump have to comply, or can he dispute the vote? Is it even possible to have a majority (or whatever) of the cabinet vote today, for example, and have Trump out of office on that day? I have a few more questions.
The vote is a simple majority, and must include the VP.
The Constitution is vague about who exactly is eligible to participate in the vote. Section 4 only says
Whenever 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…
So who are these principal officers? Obviously, the cabinet secretaries. But is an acting secretary a “principle officer?” There are a lot of statutes that vest certain powers only in officers who have been Senate-confirmed. So a deputy secretary acting as a secretary might be able to do things that a down-the-line civil service guy in an acting position might not be able to do. But the Constitution doesn’t make this distinction, so it’s unclear.
Section 4 does allow Congress to provide that some “other body” conduct the vote instead of the Cabinet. They have not done so, and any law establishing such a body would be subject to presidential veto (and potential congressional override, etc.)
Section 4 also allows the president to dispute the Cabinet’s (or other body’s) decision, in which case Congress ultimately decides the matter, anyway.
Adding to what @friedo says, here’s a nice flowchart and thread from Twitter:
Be sure to click “View replies” so you can see the corrections and answers to the immediate replies to the post.
One of my other questions concerns “a majority of what?” IOW, if there are 15 votes, say, but five offices are vacant (due to recent resignations) and two more are filled by people never confirmed by the Senate, is a majority eight, or six, or five? Does DeVos resigning reduce the number needed, or does she count as in effect a “No” vote if she has resigned? What I’m saying, I think, is that this has to be worked out legally for Trump to step down, and is there time for that?
Trump can step down himself if he wants, all he has to do is announce that he quits.
But I agree that there is a lot of ambiguity concerning the Cabinet’s role here. “The Cabinet” isn’t even really a thing, legally speaking. It’s just the name we use to describe a group of the executive branch’s principal operational officers.
And there’s no precedent to look to when it comes to voting procedures or quorum requirements, since the Cabinet is not normally a deliberative body and does not conduct votes.
I would like to see Congress formally organize the Cabinet by statute and more clearly define its role, including record keeping requirements and a formalized process for conducting votes under the the 25th. Or maybe we replace the 25th with something better.
It’s odd, too, because usually when an amendment includes language like “Congress may by law provide…”, it’s because Congress intended to do exactly that, and already had a draft of the law they were going to pass under that authority. Here, they included the clause in the amendment, but never followed up on it.
That’s true, and I imagine Congress was not particularly interested in that fight with the executive branch (you want some anonymous collection of bureaucrats to be able to fire the president?!). The amendment itself was largely seen as apolitical and endorsed by establishment figures across the spectrum. But passing legislation pursuant to Sec. 4 was always going to be contentious. The debate over limiting the executive branch’s war powers was happening around the same time, and it took a lot of political capital and a contentious veto override to pass the War Powers Resolution.
It would be much simpler for Congress to pass a law clarifying how the 25th Amendment is to operate than to implement a constitutional amendment replacing it.
You mean like this?
I would like to see Congress formally organize the Cabinet by statute and more clearly define its role, including record keeping requirements and a formalized process for conducting votes under the the 25th.
Exactly; it’s easier to do that than try and replace it.
But presumably congress could also designate the Supreme Court as an “other such body”? Or does “other such” imply some collective of the executive branch?
Regardless, it would always also need the agreement of the VP.
And within 21 days, ratification by congress to make it stick beyond that.
Also, presumably such legislation can like other laws be empowered by a veto override in congress, if 2/3 will agree.