What is the role of Congress in invoking the 25th amendment?

If you’ve been following the news even a little bit, you’ve probably heard someone say ‘we need to implement the 25th Amendment.’ What they mean is ‘invoke Section 4‘ to transfer the power of the presidency to the Vice President, something that has never happened.

Why? Consider President Donald Trump’s actions the past two days: admitting that not receiving the Nobel Peace Prize is why he’s threatening Greenland, which is part of Denmark, not Norway. Threatening tariffs on the European countries opposing his efforts to obtain Greenland as a US territory. Refusing to rule out using the military to take Greenland.

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.

The Vice President, along with a majority of the cabinet, invokes the 25th amendment when they believe president is “unable to discharge the powers and duties of his office.” They must say so in a declaration to the leaders of the Senate and House of Representatives.

Congress has the authority to create an alternative to the cabinet but has not done so. When this amendment passed, it was not unusual for the Congress to be Democratic and the White House, Republican. Perhaps that is why this “ather such body” language exists.

The Vice President immediately assumes the power of the presidency after submitting the declaration.

The elected President has the right to refute the claim, again by writing to the leaders of the Senate and House of Representatives. The clock is ticking: within four days.

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.

Should the President object, the complainants must again transmit a written declaration that the President is unfit to the leaders of the Senate and House. This declaration must be made within four days of the President’s refutation.

At that point, the ball is in Congress’ court.

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.

Congress must vote to replace the President with a two-thirds vote of both the Senate and House.

Article II, Section 4 of the Constitution, the impeachment clause, requires that any impeachment proceedings begin in the House of Representatives with a simple majority vote. The Senate, however, must have a two-thirds vote to impeach.

In today’s environment, neither is likely to happen until Republicans cease fearing President Trump. Given that loyalty means everything to Trump, half of his cabinet is unlikely to rebel as well. Having the power is not the same as being willing to use it.

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