25th amendment: what happens in the period between the VP's two declarations?

Question

Section 4 of the 25th amendment provides:

Whenever the Vice President [transmits a declaration] the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President [transmits a declaration], he shall resume the powers and duties of his office unless the Vice President [transmits a declaration] within four days [...]

This seems a little ambiguous to me. On the one hand, the language suggests that the P resumes their powers as soon as their declaration is made. At that moment in time, it is uncertain whether or not the VP will transmit a 2nd declaration, so the "unless" qualifier doesn't yet apply. On the other hand, if the VP does eventually re-declare, then the "unless" is contradictory if the resumption of power has already taken place.

For example:

• Day 1: VP makes 1st declaration.
• Day 2: P makes declaration.
• Day 3: VP makes 2nd declaration.

On day 2, there has been no 2nd declaration, so the "unless" provision isn't (yet) applicable and there is nothing to stop the P resuming powers. But on day 3, the "unless" provision is invoked, meaning that no resumption can take place. But it already has if the earlier interpretation is correct.

My guess is that any resumption is effectively on hold until either the full 4 days elapses, or the VP re-declares. Any other views or authority?

Answer 1

Unknown

The language is ambiguous, exactly as the question describes. The procedures under section 4 of the 25th Amendment have never been invoked. Thus there is neither any court ruling nor any working precedent to guide interpretation.

In this kind of situation, the President will have power if and only if others treat him or her as having power, and obey Presidential orders. What the legal position was would only be known after the fact, when (and if) a court, probably the Supreme Court, ruled on the matter.

And unless someone brought a court case challenging some action that was taken during the course of such an event, there will be no court ruling, as US Federal courts only consider "case" and "controversies" brought by those who have active disputes, and refuse to make theoretical or declaratory judgements.