Section 4: Declaration by vice president and cabinet members of president’s inability[edit]

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^{[note 1]} 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 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.^[5]

Section 4 addresses the case of an incapacitated president who is unable or unwilling to execute the voluntary declaration contemplated by Section 3. It allows the vice president, together with a “majority of either the principal officers of the executive departments or of such other body as Congress may by law provide“,^{[note 2]} to issue a written declaration that the president is “unable to discharge the powers and duties” of their office. Immediately upon such a declaration being sent, the vice president becomes acting president^{[note 3]} while (as with Section 3) the president remains in office, albeit divested of all authority.^[7]

John Feerick, the principal drafter of the Amendment,^{[6]:5[8][3]:xii,xx} writes that Congress judged that “a rigid constitutional definition [of the terms unable and inability] was undesirable, since cases of inability could take various forms not neatly fitting into such a definition … The debates surrounding the Twenty-Fifth Amendment indicate that the terms ‘unable’ and ‘inability’ are intended to cover all cases in which some condition or circumstance prevents the President from discharging his powers and duties …”^[3]:112

The “principal officers of the executive departments” are the fifteen Cabinet members enumerated in the United States Code at 5 U.S.C. § 101 (with officeholders as of January 7, 2021):^[9][10]

• Secretary of State (Mike Pompeo)
• Secretary of the Treasury (Steve Mnuchin)
• Secretary of Defense (vacant; Christopher C. Miller acting)
• Attorney General (vacant; Jeff Rosen acting)
• Secretary of the Interior (David Bernhardt)
• Secretary of Agriculture (Sonny Perdue)
• Secretary of Commerce (Wilbur Ross)
• Secretary of Labor (Eugene Scalia)
• Secretary of Health and Human Services (Alex Azar)
• Secretary of Housing and Urban Development (Ben Carson)
• Secretary of Transportation (Elaine Chao resigning as of Jan 11; Steven Bradbury acting)^[11]
• Secretary of Energy (Dan Brouillette)
• Secretary of Education (vacant; Mick Zais acting)
• Secretary of Veterans Affairs (Robert Wilkie)
• Secretary of Homeland Security (vacant; Chad Wolf acting)

Acting secretaries can participate in issuing the declaration.^[6]:13 The vice president’s participation is essential, and vacancy in the vice presidency rules out invocation of Section 4.^[3]:121

If a president subsequently issues a declaration claiming to be able, then a four-day period begins during which the vice president remains acting president.^{[3]:118-9[6]:38n137} If by the end of this period the vice president and a majority of the “principal officers” have not issued a second declaration of the president’s incapacity, then the president resumes his powers and duties, but if a second declaration of incapacity is issued within the four days, then the vice president remains acting president while Congress considers the matter. Then if within 21 days the Senate and the House determine, each by a two-thirds vote, that the president is unable, then the vice president continues as acting president; otherwise the president resumes his powers and duties.^{[note 4]}

Section 4’s requirement of a two-thirds vote of the House and a two-thirds vote of the Senate contrasts with the Constitution’s procedure for removal of the president from office for “high crimes and misdemeanors” – a majority of the House followed by two-thirds of the Senate (Article I, Section 3, Clauses 5 and 6).^[13][14]