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The 25th Amendment says that the Vice-President, in conjunction with half of the fifteen executive department heads, can declare the President unfit to discharge his duties. Presently only two of the fifteen departments have confirmed heads (Defense and Homeland Security). The other thirteen are headed by acting secretaries (or equivalent).

If the Vice President were to invoke the 25th Amendment, who would actually be required to support his declaration of the President's unfitness? Would eight acting secretaries be sufficient? Or do they count? Would only one of the two confirmed secretaries be sufficient? Or would he have to actually wait until there are at least eight confirmed secretaries?

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  • You should ask if the acting secretary of a cabinet position is in the chain of succession. I think that would be a more interesting question. Consider the Secretary of State in that chain. At what point after he becomes acting president does his deputy enter the chain so that the next in line is no longer eligible.
    – sabbahillel
    Commented Jan 26, 2017 at 19:00
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    I'm not sure why this is getting downvotes. Some constructive criticism please?
    – Stephen Collings
    Commented Jan 26, 2017 at 19:06
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    @sabbahillel it might be a more interesting question, but it is a completely different question. Whether anyone is in the chain of succession is not relevant to the process of declaring a president unfit for office.
    – phoog
    Commented Jan 26, 2017 at 19:11
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    @sabbahillel I agree that's an interesting question. Ask it!
    – Stephen Collings
    Commented Jan 26, 2017 at 19:13
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    There seems to be a lot of commentary over what would or would not count as "unfit". it doesn't matter, because contrary to what the question asserts, the 25th amendment does not allow removal of a president who is "unfit". The criteria used in the amendment, multiple times, is "unable to discharge the powers and duties of his office"
    – Ben Voigt
    Commented Jan 27, 2017 at 3:15

2 Answers 2

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The 25th amendment does not state "Secretary". It states "Principal Officers". That term is generic and has no Constitutional definition. Therefore, I would imagine that Acting Secretaries would count. However, this has never been tested by SCOTUS so there is no way to know for sure.

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    The section requiring confirmation in the senate doesn't use the phrase "secretary" either. Because "all other officers of the United States" are appointed with the advice and consent of the senate, anyone who hasn't undergone senatorial confirmation can't count as a "principal officer".
    – Ben Voigt
    Commented Jan 27, 2017 at 3:12
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If the VP were to invoke the 25th amendment to remove the President as unfit for office, would acting secretaries be able to consent?

Yes, this was discussed when considering the Twenty-Fifth Amendment and would seemingly qualify as the "intent of Congress" that acting secretaries would be able to consent.

Referring to the Congressional Research Service report Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress, November 5, 2018 —

Respecting details of the Cabinet’s participation, the House Judiciary Committee’s 1965 report on the proposed amendment stated that in the event of a vacancy in any of the Cabinet offices, "the acting head would be authorized to participate in a presidential disability determination," while Feerick notes that the amendment’s supporters asserted that recess appointees to Cabinet offices would also be eligible to participate in a Section 4 deliberation.

[Feerick refers to John Feerick, who "was primarily responsible for the composition of the 25th Amendment to the United States Constitution."]

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