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§4 of the 25th amendment makes reference to "a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide" – Congress has not provided anything else. 5 USC 101 lists the "executive departments". Art II § 2 of the Constitution says that the president

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for

It is reasonable (but not self-evident) that having been nominated to be a principal officer of, e.g., the Dept. of Justice does not thereby make you one.

What legal precedent can be called on to decide if an acting department head "counts" as a principal officer for purposes of the 25th Amendment §4, either for determining what number constitutes a "majority", and for determining whose written declarations are to be considered?

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    The 25th Amendment uses the spelling "principal officers": we should not rewrite the 25th Amendment.
    – user6726
    Commented Jan 12, 2021 at 22:56
  • Especially since "principal" is the correct spelling of the word. "Principle" is a different word that doesn't make any sense in this context.
    – phoog
    Commented Jan 13, 2021 at 4:58
  • Also it is entirely self evident that being nominated to be (e.g.) Attorney General doesn't make you Attorney General. To become Attorney General you have to be appointed to the office, which only happens after being confirmed by the senate, which only happens after being nominated by the president.
    – phoog
    Commented Jan 13, 2021 at 5:14

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The question has no definitive resolution other than the authorities cited and some other related authorities such as the protocol rules of the Secretary of State for diplomatic purposes and the Presidential succession statute. It has never been litigated any reasonable interpretations of the the constitution and relevant law could be argued. There is also some case law under the appointments clause regarding which departments count as principal departments.

There is a broad consensus regarding the existence of 15 principal departments of the United States government and which departments those 15 departments are in practice.

I would say that the majority view is that the highest ranking person in each department is the principal officer of that department (which is provided for by statute in the event of vacancies) but there is also an argument that only the Congressional ratified and Presidentially nominated Secretary of a department (and the Attorney General in the Justice Department similarly appointed) count.

In the event of a dispute, either Congress or a court could resolve the issue depending upon how the issues ended up being presented for a decision. If asked, the White House Counsel would render a formal opinion that would be binding upon all members of the Executive Branch.

Triller novel writer Tom Clancy has explored some of the scenarios as have other writers in the same genre, but since the 25th Amendment has never been invoked in this manner, there is no definitive answer or even a non-judicial precedent to provide us with guidance on the question.

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  • Why would the White House counsel have the last word as far as the executive branch was concerned? Could he direct that some person was not a "principal officer and therefore could not take part in the vote with the VP?. Seems like an extra-constitutional end run around the process.
    – George White
    Commented Jan 13, 2021 at 0:57
  • I am assuming that the list in 5 USC 101 would suffice to rule out e.g. the current 20+ member "Cabinet" list on the White House website. Is it your opinion that if this came up, we would be in completely uncharted territory and no foundation for deciding whether senatorially-unapproved successors get to "vote" on the matter?
    – user6726
    Commented Jan 13, 2021 at 1:44
  • @GeorgeWhite The established bureaucratic process is that the Office of Legal Counsel is the equivalent of a state attorney general and establishes binding interpretations of federal law that are binding on the Executive Branch.
    – ohwilleke
    Commented Jan 13, 2021 at 2:05
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    @user6726 "would suffice to rule out e.g. the current 20+ member "Cabinet"" yes. "e would be in completely uncharted territory" the are arguments to make both ways by analogy and policy considerations both ways. But the 25th Amendment invokes a concept that has few close parallels. Legislative history would be my first go to source to resolve if it I had to decide it. Realistically, any interpretation given to it by the VP in submitting an "I'm in charge" letter is probably going to receive deference in a close call. And depending on the cabinet votes secured it may not matter.
    – ohwilleke
    Commented Jan 13, 2021 at 2:08
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There is only one “principal officer” of each executive department

There are currently 15 of these men (funny that they’re all men, isn’t it): their names and photos are in the linked article. They become the principal officers after being confirmed by Congress.

A person acting in that capacity is not a principal officer. The 25th amendment has never been triggered so there is no case law to decide if they can exercise the functions if they are merely acting or what a majority means if some of the positions are vacant.

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  • What is the legal argument that any of the acting heads of department are the principle officers? For example, the acting President of the US is clearly not the President of the US.
    – user6726
    Commented Jan 12, 2021 at 22:52
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    Actually, two of the 15 were women until they resigned in the wake of the January 6, 2021 event.
    – ohwilleke
    Commented Jan 12, 2021 at 23:38
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    @user6726 Not so clear as you seem to think. The first time a President died in office and the VP assumed the role of the President, his detractors made a consistent point of calling him "Acting President", while he and his supporters made an equally consistent point of calling him "President". Which one was correct was not clear from the constitution. Ultimately, the perception of him as "President" won out, and is how we've always treated a VP who has taken over for a removed/dead President since. How it'd work in a Section 4 of the 25th amendment invocation is yet to be decided.
    – zibadawa timmy
    Commented Jan 13, 2021 at 1:59
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    @zibadawatimmy, the details of the 25th Amendment make it clear: a disabled president is still referred to as the "President" and not "former president", and it refers to the VP's role as "acting president". The 25th Amendment removed the historical uncertainty.
    – user6726
    Commented Jan 13, 2021 at 2:27

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