Principal Officers and the Function of Section 4 of the 25th Amendment

54 U.C. Davis Law Review Online 89 (2021), https://lawreview.law.ucdavis.edu/online/54/krishnamurthi_salib.html.

15 Pages Posted: 4 Feb 2021 Last revised: 13 Apr 2021

See all articles by Guha Krishnamurthi

Guha Krishnamurthi

University of Oklahoma College of Law

Peter Salib

University of Houston Law Center

Date Written: January 10, 2021

Abstract

Section 4 of the 25th Amendment allows the “Vice President” and a majority of the “principal officers of the executive departments” to disempower a President who is “unable” to discharge the office’s powers and duties. Scholars and courts agree that “principal officers” means the members of the President’s Cabinet. Less clear is whether acting Cabinet members count as “principal officers.” The present scholarly consensus is that, while the issue is a close one, the Amendment’s text and legislative history suggest that acting members do count.

This Essay complicates that consensus. It suggests that, if text and history are ambiguous, function should inform our reading of the 25th Amendment. And the best functional argument is that acting Cabinet members should not count as “principal officers” who can vote in the Section 4 process. The standard reading, under which acting members are “principal officers,” allows an out-of-control President to easily short-circuit the very process designed to rein him in. Under that interpretation, a deranged President, suspecting Section 4 action against him, could simply fire his Cabinet and replace them with loyalist acting members who would vote in his favor. By contrast, as we explain, an interpretation excluding acting members from the category of “principal officers” makes Presidential manipulation of the Section 4 process harder. Our reading therefore best preserves Section 4’s function as an extraordinary tool, able to quickly curb Presidential malfeasance and thereby avert disaster, perhaps on a global scale.

Keywords: President, 25th Amendment, Principal Officers

JEL Classification: K10, K40

Suggested Citation

Krishnamurthi, Guha and Salib, Peter, Principal Officers and the Function of Section 4 of the 25th Amendment (January 10, 2021). 54 U.C. Davis Law Review Online 89 (2021), https://lawreview.law.ucdavis.edu/online/54/krishnamurthi_salib.html., Available at SSRN: https://ssrn.com/abstract=3766303 or http://dx.doi.org/10.2139/ssrn.3766303

Guha Krishnamurthi (Contact Author)

University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

Peter Salib

University of Houston Law Center ( email )

4104 Martin Luther King Blvd.
Houston, TX 77204
United States

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