25 45?

[l33tminion]

Since the idea of the current President being removed from office has come up again for some reason, and discussion of the procedure for removing a corrupt and/or criminal President is so last year, thought it might be interesting to brush up on Amendment 25 Section 4, the second way the Vice President can become Acting President. Here's the text, with my commentary and questions:

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,

Congress hasn't done that yet, so let's refer to "the Vice President and a majority of the principal officers of the executive departments" as "VP+Cabinet" for short.

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,

Note that this is not a procedure for removing a President who is able to "discharge the powers and duties of his office" but uses those powers badly. This is a way of dealing with Presidential incapacity, not incompetence or malfeasance. I suppose you could argue that a President who is incapable of refraining from violating their oath of office qualifies, but that seems to be stretching to present "unwilling" as "unable". In any case, pretty confident SCOTUS would say that's a political question, the way it's resolved what counts as "unable" is according to the procedure outlined here by VP+Cabinet, the President, and Congress.

the Vice President shall immediately assume the powers and duties of the office as Acting President.

In this case, the President is still President and the Vice President is still Vice President, but the President doesn't have Presidential powers and the Vice President does. So this does not fall under Trump's one surefire way of preventing Biden from becoming the 46th President of the United States.

Interesting questions: Does this mean the President Pro Tempore is now presiding over the Senate in general (as opposed to just in the context of this procedure), since the Vice President is busy being the Acting President? Does this have any implications for the President's immunity to certain sorts of compulsory judicial procedure, if somehow "unable to discharge the powers and duties" of the Presidency but not incapacitated in general?

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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.

If VP+cabinet says "no you can't" and the President says "yes I can", does the President resume power immediately, or in four days? It does say "unless" instead of "until", and it doesn't mention the Vice President assuming the office again, so maybe the answer is "in four days"?

Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. 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.

This gives Congress a way of making the Vice President into the Acting President permanently, and gives a deadline where the President resumes the office automatically absent that. However, it doesn't make it clear if Congress (or VP+Cabinet, for that matter) can restore the President to office before that point. For example, if there's a vote in Congress on the issue that fails to meet the 2/3 threshold in both houses, does the President resume their office immediately, or only when the 21 days are up? Does the requirement that Congress assemble for that purpose preclude them taking up other business or concluding their session before the 21 days are over? What would happen if a President was starting a new term during the 21 days?

Also, would this preclude VP+Cabinet immediately going back to square one in the procedure and kicking the President out of power for four days every four days, Congress be damned? Would it preclude VP+Cabinet invoking that procedure ever again, at least for the remainder of the term?

(These are the sorts of issues often clarified by legislation authorized by a constitutional provision to implement the details of that provision. But this provision doesn't explicitly authorize such legislation.)