When “the President is unable to discharge the powers and duties of his office…”: The Cabinet Math of the 25th Amendment

Section 4 of the 25th Amendment, the presidential “inability”/incapacity amendment, has never been invoked. After four weeks of the Trump administration and especially after yesterday’s press conference, it is time for a sincere conversation about how it might be invoked and its mechanics: Pence plus a majority vote of the cabinet. Which of the cabinet members might be just independent enough from the Trump/Bannon orbit to weigh Trump’s incapacities seriously? And shouldn’t the Senate Democrats — plus a handful of concerned Senate Republicans — vote on cabinet confirmations with that question in mind?

Section 4 of the 25th Amendment states:

“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, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

My generous colleague Dean John Feerick literally wrote the book on this subject (an award-winning book). What is the conceivable path to a majority if the Trump crazy degenerates, and/or if a true crisis exposes his emotional/intellectual incapacity? I consider two factors: Is the cabinet member from inside or outside the Trump/Bannon circle? Does the cabinet member have a strong external base of support? And importantly, how much would the cabinet member approve of a Pence presidency in any event?

Here is the list of the cabinet members who have been confirmed, with my oversimplified best guess on a scale of 0 (vote “no” on inability) to 5 (vote “yes”). (I think 48% of America is already at 6 to 10, so I am already grading on a curve.)

State: Rex Tillerson. 4. Not the Trump/Bannon circle, independent base in the business world, unhappy with Trump’s immigration debacle and getting frozen out of those plans, happy with the establishment pro-business Pence.

Defense: Mattis. 5. Way outside the Trump/Bannon world, and seems to be increasingly critical of the Bannon agenda. He is the best of the Trump cabinet. Independent base in the defense world. Probably comfortable with Pence.

Treasury: Mnuchin. 0. Fahgeddeboutit. Total Trump toady.

Attorney General: Sessions. 1. The Mercury of the Trump/Bannon solar system. Small, alternately blazingly hot and ice cold, unsustainable for life as we know it, and racist. (Wait, sorry, Mercury wasn’t racist. Sorry, Mercury.) The only reason to think he is a maybe is because he was a Senator for two decades, and he is not part of the Trump business crony world. He is probably fine with Pence.

Homeland Security: Kelly. 5. The same as Mattis.

HHS: Price. 4. As a veteran Congressman, Price still has an independent base. His crusade is against the Affordable Care Act, and I can only imagine how frustrating Trump’s La La Land health care promises have been for Price. Trump makes Price’s job harder, Pence makes it easier.

Education: DeVos. 2. She is probably the closest to Pence’s fundamentalism, but she is weak, shallow, and stunningly ignorant about the world. She will follow a majority, but she won’t lead it.

Transportation: Elaine Chao. 4. She is very independent of the Trump world, and very much part of the GOP establishment (8 years as Labor Secretary under W., married to Sen. McConnell). If Trump’s insanity and unpopularity become a threat to her husband’s power as majority leaders, she will be among the first to vote yes. And a Pence presidency would play out fine in Kentucky.

Veteran Affairs: Shulkin. 5. A serious doctor from far outside the Trump world, probably Trump’s most unassailable, professional choices. He cares deeply about good management. His father was a psychologist. He knows crazy when he sees it, and I can only imagine how concerned he must be already. I want to believe he is an 8, but then I might be crazy.

UN Ambassador: Haley. 2. She was already a sharp Trump critic in the primaries. But she has presidential ambitions herself, and she is probably more worried about the Trump voters in the primaries of 2020 or 2024. And I bet she would see Pence as a threat to her immediate White House ambitions. She will only follow a majority.

OMB: Mulvaney: 3 or 4. Former Congressman, very much establishment GOP, fiscal conservative, zealous pro-lifer. He must think a Pence presidency would be preferable. An OMB head isn’t going to lead this vote, but he would jump on board in a crisis.

CIA: Pompeo. 4. I’m not a fan, but he is serious about national security and stable executive leadership. He is a Congressional veteran and a professional. In a deep crisis, he would be a “yes” vote to put country over party. This position probably doesn’t count formally in cabinet anyway.

Small Business. Linda McMahon from the WWF. 0. Not even worth an explanation.

(I believe Priebus does not count as a cabinet-level officer under the 25th amendment, so I’m not counting him, but he would be a 1. A craven hack who would only follow.)

Of the already confirmed cabinet-level nominees, I count seven out of 12 as being open to voting “yes” on incapacity. (I’m not counting Haley or DeVos, because they would only be followers).  That’s a bare majority. Every new confirmation could tip the balance, and the balance is very close:

Maybes: Zinke (Interior) and Perdue (Ag) are political veterans, a recent Congressman and a recent Governor. 3s or 4s? The media reports that Perdue is getting cold feet about serving anyway. Acosta, the new Labor pick, is a solid choice, a veteran of the DOJ and the W. administration, a reputable law school dean. He’s probably a 4. Coats (DNI) is like Pompeo, a 4 or 5.  USTR Lighthizer? A Reagan official/Skadden partner/steel industry lawyer. He is not a Trump troll, but he is not in a strong cabinet leadership position. A 3 or 4.

Zeroes: Rick Perry (Energy) is a humiliated has-been who depends on Trump entirely for getting back into power. Carson (HHS) knows crazy, and he loves it. Ross (Commerce) is a Trump crony. Those three guys are zeroes.

I’m not yet counting Pruitt, because he has serious email problems that are going to delay if not kill his confirmation. He may be too weakened to have any independent political life after Trump, so I would count him as a 1. [Update: So maybe I am the crazy one. I thought Pruitt’s record plus email legal troubles would stall him when I posted this. Four hours later, he was confirmed. But the upside is that ethics issues don’t seem to weaken Republicans within their own party! So he is not too weakened to vote “yes” on Trump being too crazy for even this Republican party. He is now a “3.”

If Pence quietly initiated a 25th Amendment process behind the scenes, are there leaders in the cabinet who might be open to agreeing?  Yes. By my count, there might be a very narrow majority, and the unconfirmed nominees also might sustain that narrow majority for the 25th amendment math.

My best guess in light of the 25th Amendment: Confirm Pompeo, Coats, and Lighthizer soon. Ask more questions quietly about Perdue, Zinke, and Acosta, but don’t delay them. Slow down the process (or block) Perry, Carson, Ross, and Pruitt.  And that’s a more likely path to stopping the insanity than impeachment.

Update: Christian Turner asks about the rest of the Amendment, the role for Congress to resolve a dispute over inability after the cabinet majority vote. Congress would need a 2/3 vote in both Houses to keep Pence over Trump.  Here is the rest of the text:

“If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”

Once Pence, an establishment/solid fundamentalist Republican, and a cabinet moves on this, the political dynamics in Congress would change dramatically. Congress would have so much political cover from the cabinet, and I think once there is a majority vote in the cabinet, a few followers like Haley, DeVos, and other “2s” or “3s” in my scale would jump in to increase the cabinet vote to a two-thirds vote. Keep in mind that I am talking about a scenario where Trump’s insanity becomes more obvious and more dangerous. The word from the conservative media today (including former GOP rep. Joe Scarborough) is GOP Congressmen and Senators were “panicked” after Trump’s unhinged press conference. I’ll bet they are having some similar conversations as the one here.








Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

2 thoughts on “When “the President is unable to discharge the powers and duties of his office…”: The Cabinet Math of the 25th Amendment”

  1. Thank you for answering my question! I sent it to Lawnewz and Lawrence Tribe. So a wish fulfilled! Timing is so critical, sending it out by twitter in many directions

    Liked by 1 person

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