Serial invocation of the 25th amendment

[Slander and/or Libel]

A 25th Amendment question. But first, a quick summary.

1) The Vice President and a majority of the cabinet determines the president is incapable of discharging the powers and duties of office, tells congress, and the Vice President immediately becomes acting president.

2) The president writes congress and says, “no,  those guys.”

3) The acting President has 4 days to write congress and say, “no, seriously, he can’t do it.”

4) Congress has 21 days to vote. If 2/3 of both houses agree, then the Vice President remains acting President. If not, the president resumes office.

So here’s my question. Let’s say there aren’t 2/3 in the House or Senate to keep the president from resuming office. What, then, is to stop the Vice President and cabinet from resuming the process immediately, like 30 seconds after the president resumes office? Would the bar be only political?

One obvious bar would be that the president could resume office and immediately fire all of the cabinet officials that aided the invocation of the amendment. But the Vice President as acting President could presumable urge quick passage of measures that would prevent that (either by insulating cabinet officials or by providing for a different body to determine when the president is incapable of discharging his powers and duties, which is explicitly allowed by the amendment).

This is all just idle speculation. I was just wondering if the only bar to serially invoking the amendment is a political one.

[J. J.]

A 25th Amendment question. But first, a quick summary.

1) The Vice President and a majority of the cabinet determines the president is incapable of discharging the powers and duties of office, tells congress, and the Vice President immediately becomes acting president.

2) The president writes congress and says, “no,  those guys.”

3) The acting President has 4 days to write congress and say, “no, seriously, he can’t do it.”

4) Congress has 21 days to vote. If 2/3 of both houses agree, then the Vice President remains acting President. If not, the president resumes office.

So here’s my question. Let’s say there aren’t 2/3 in the House or Senate to keep the president from resuming office. What, then, is to stop the Vice President and cabinet from resuming the process immediately, like 30 seconds after the president resumes office? Would the bar be only political?

One obvious bar would be that the president could resume office and immediately fire all of the cabinet officials that aided the invocation of the amendment. But the Vice President as acting President could presumable urge quick passage of measures that would prevent that (either by insulating cabinet officials or by providing for a different body to determine when the president is incapable of discharging his powers and duties, which is explicitly allowed by the amendment).

This is all just idle speculation. I was just wondering if the only bar to serially invoking the amendment is a political one.

The President can fire those cabinet members wanting to remove him in those 30 seconds. At that point, Congress will decide who is trying to do what.   The urging of an acting president means almost nothing.

[Slander and/or Libel]

So say the vp  doesn’t give 30 seconds. Say he prepares a letter effective the moment the president resumes office. Does he become acting President again with no gap?

[The Mikado]

I think J J has it right here (broken clocks etc.). The President could easily issue a statement while he's out of office saying that "effective the second I'm reinstated, the following Cabinet officials are dismissed" or something like that.

Also, I'm pretty sure that if the VP really tried to do that despite Congress clearly not wanting to get rid of the President, they'd eventually impeach the Vice President. Invoking the 25th Amendment a second time would be such a blatant and gross act of powergrabbing that Congress would probably be ticked that its input was ignored.

[Slander and/or Libel]

I think J J has it right here (broken clocks etc.). The President could easily issue a statement while he's out of office saying that "effective the second I'm reinstated, the following Cabinet officials are dismissed" or something like that.

Also, I'm pretty sure that if the VP really tried to do that despite Congress clearly not wanting to get rid of the President, they'd eventually impeach the Vice President. Invoking the 25th Amendment a second time would be such a blatant and gross act of powergrabbing that Congress would probably be ticked that its input was ignored.

That could be, though with the bar being 2/3 votes in both houses, you could certainly have a scenario where solid majorities would vote against the president, but not quite enough for the amendment’s requirements.

This is all notional anyway. It would basically never happen. I was just curious about what law would say about such a thing.

[True Federalist (진정한 연방 주의자)]

The 25th wasn't designed to deal with a situation like Trump.  That's precisely why it has such a high bar so that only if it's fairly obvious to everyone that the President is incapacitated, say by a stroke a la Wilson or an would-be assassin's bullet a la Kennedy, does it provide a means to get him out of the way. Imagine if Reagan had been as injured as Brady was. That's what the 25th is there for, not creeping senility.

[J. J.]

I think J J has it right here (broken clocks etc.). The President could easily issue a statement while he's out of office saying that "effective the second I'm reinstated, the following Cabinet officials are dismissed" or something like that.

Also, I'm pretty sure that if the VP really tried to do that despite Congress clearly not wanting to get rid of the President, they'd eventually impeach the Vice President. Invoking the 25th Amendment a second time would be such a blatant and gross act of powergrabbing that Congress would probably be ticked that its input was ignored.

That could be, though with the bar being 2/3 votes in both houses, you could certainly have a scenario where solid majorities would vote against the president, but not quite enough for the amendment’s requirements.

This is all notional anyway. It would basically never happen. I was just curious about what law would say about such a thing.

Well, this would be how it would play out:

1.  The President declared unable by the VP/Cabinet.

2.  The President declares he is able.

3.  Congress meets.

4.  Congress passes the "Presidential Sanity Commission Act," which established a body to make the determination with Vice (now Acting) President.  This could even be a joint congressional committee.  A majority favors it.

5.  Vice (now Acting) President signs the law.

6.  Less than 2/3 of the House and Senate think that the President is unable to continue, but a majority does.

7.  At this point, the President has full power, and fires all Cabinet that tried to remove him.

8. The Vice President, at the same time, with "Presidential Sanity Commission" declares the President unable to serve.

At that point, the President can declare that he is fit, we have a repeat of steps 3-6.  However, when the President returns to power, there is no person to fire.  He can't fire the Commission.  He can't fire the VP.  The only thing the President can do is take it back to Congress, and the process repeats.  The president says, "I'm able" and the VP/Commission says, "No, your not."  At that point, they could just photocopies of the documents through each cycle. 

[J. J.]

The 25th wasn't designed to deal with a situation like Trump.  That's precisely why it has such a high bar so that only if it's fairly obvious to everyone that the President is incapacitated, say by a stroke a la Wilson or an would-be assassin's bullet a la Kennedy, does it provide a means to get him out of the way. Imagine if Reagan had been as injured as Brady was. That's what the 25th is there for, not creeping senility.

I doubt that it is creeping senility or anything.  Trump has been a public figure, nationally, since at least the early 1990's (and arguably earlier the late 1980's).  I really have not seen a change in his behavior from that time.

The claim now is that Trump is "erratic," which would not be a legitimate ground for invoking the 25th Amendment.  He has been been like this since he has been a nationally known public figure.  We can criticize what Trump does, but it isn't anything new. 

[Slander and/or Libel]

I think J J has it right here (broken clocks etc.). The President could easily issue a statement while he's out of office saying that "effective the second I'm reinstated, the following Cabinet officials are dismissed" or something like that.

Also, I'm pretty sure that if the VP really tried to do that despite Congress clearly not wanting to get rid of the President, they'd eventually impeach the Vice President. Invoking the 25th Amendment a second time would be such a blatant and gross act of powergrabbing that Congress would probably be ticked that its input was ignored.

That could be, though with the bar being 2/3 votes in both houses, you could certainly have a scenario where solid majorities would vote against the president, but not quite enough for the amendment’s requirements.

This is all notional anyway. It would basically never happen. I was just curious about what law would say about such a thing.

Well, this would be how it would play out:

1.  The President declared unable by the VP/Cabinet.

2.  The President declares he is able.

3.  Congress meets.

4.  Congress passes the "Presidential Sanity Commission Act," which established a body to make the determination with Vice (now Acting) President.  This could even be a joint congressional committee.  A majority favors it.

5.  Vice (now Acting) President signs the law.

6.  Less than 2/3 of the House and Senate think that the President is unable to continue, but a majority does.

7.  At this point, the President has full power, and fires all Cabinet that tried to remove him.

8. The Vice President, at the same time, with "Presidential Sanity Commission" declares the President unable to serve.

At that point, the President can declare that he is fit, we have a repeat of steps 3-6.  However, when the President returns to power, there is no person to fire.  He can't fire the Commission.  He can't fire the VP.  The only thing the President can do is take it back to Congress, and the process repeats.  The president says, "I'm able" and the VP/Commission says, "No, your not."  At that point, they could just photocopies of the documents through each cycle. 

Yeah, this is pretty much the eventuality I'm imagining. Not going to happen, but theoretically plausible the way the amendment is written.