Nevermind what is or is not most beneficial to the political future of Vice President Michael Pence. Our former Indiana governor has a sense of duty and the moral imperative to carry out such duty. The CLB urges the Vice President to convene a Cabinet meeting and to secure his own vote and that of a Cabinet majority in favor of a declaration that the President is unable to discharge the duties of his office. The reason, of course, for such action would be the President’s incitement of rioting on January 6th at the Capitol Building. The President’s lawless, destructive behavior cannot be tolerated by patriots of good conscience. The declaration mentioned above would be pursuant to Amendment XXV to the United States Constitution and particularly to Section 4 of that Amendment.
Upon presentation of the mentioned written declaration to the President Pro Tem of the Senate and to the Speaker of the House our Vice President shall assume the powers and duties of the office of the presidency as Acting President. I have already heard commentators misinterpreting Section 4 with the assumption that President Trump could (temporarily) regain presidential powers by making and transmitting his own written declaration denying his inability. That is not consistent with the text of Section 4 which I have set out below in its entirety. To the contrary, after the President’s counter-declaration the Acting President and his Cabinet majority may interrupt any resumption of presidential powers by Mr. Trump by making and transmitting (within four days) a redundant second declaration of Trump’s inability. That declaration could and should be ready for transmission within minutes of any effort by Mr. Trump to contest the suspension of his presidential powers. Congress would then have no requirement nor any need to do anything in that President Trump’s term of office would expire prior to any deadline for Congressional action. Below is the entire text of Section 4. The CLB previously published a featured article “Thoughts on the 25th Amendment” on October 11, 2017. There was a follow-up featured article of October 3, 2019 in which I described my own inability to imagine the circumstances under which Vice President Pence might authorize a removal of presidential powers under the 25th Amendment. After yesterday’s events I no longer have to imagine.
Section 4.
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.
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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for the 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. (emphasis added)
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