Todd McKinley was a 2018 Republican Candidate for Congress in TN-01, he's a retired Army Paratrooper, Bronze Star, Combat Action Badge, and Presidential Service Badge recipient. He’s served tours in Iraq and Afghanistan as well 6 ½ years at the White House Communications Agency & White House Military Office. He’s served as an Advance Representative for the Trump Administration, and as an Advance Representative for the 2020 Trump Campaign. Follow Todd: https://www.toddmckinley.com/ ; https://www.facebook.com/todd4house/ ; https://twitter.com/todd4house ; https://www.instagram.com/todd4house/ ; https://parler.com/profile/Todd4house/posts

In recent weeks, through my new website (www.toddmckinley.com) and my Facebook page the Todd McKinley Commentary, I’ve received dozens of emails and messages asking me why hasn’t or why doesn’t Congress remove Biden under the 25th Amendment to the Constitution.

The majority took my response in stride, while some didn’t like the answer I gave them, but understood, while a few decided to take the “shoot the messenger” approach. One of the gunslingers, turned out to be a real unhinged individual who decided to accuse me of “being in on it.” When I inquired as to what exactly I was “in on,” it was made clear (or unclear) that, I was a “deep state operative,” and that I was trying to “sow misinformation,” to “trick, We the People.” This was of course not worth going back and forth with the sheer idiocy of this ‘nutter,’ but sadly he’s representative of far more like him.

My Response

Basically, my response was to point out that Congress doesn’t have the authority to enact the 25th Amendment, and that doing so is a function of the “principal officers of the executive department (branch) or of such other body as Congress may by law provide…”

At present, this duty falls to the President’s Cabinet, where a simple majority can remove the President, by transmitting a “written declaration” to the President pro tempore and the Speaker of the House that the President is “unable to discharge the powers and duties” of their office.

If they were to do so, the Vice President would immediately become “Acting President,” but this removal would be temporary, as the President could transmit their own letter to the President pro tempore and the House Speaker stating they’re fit to perform their duties as President. At this point, a majority of the Cabinet could again decide the President is still unable to perform their duties but must transmit these concerns within four days to the President pro tempore and the Speaker of the House.

At this point, the timeline would be determined on whether Congress is in session. If they’re in session, they have twenty-one days after notification to take up the matter, and if they’re out of session, they have twenty-one days upon convening their next session. If the process were to proceed this far, it would take a “two-thirds vote of both Houses” to determine if “the President is unable to discharge the powers and duties” of their office. If Congress agrees with the Cabinet in that the President is unable to discharge the duties of their office, the Vice President would become “Acting President,” and if not, the President would “resume the powers and duties of his office.”

Acting President

The 25th Amendment, which was passed by Congress on July 6th, 1965, and ratified on February 10th, 1967, and changed a portion of Article II, Section 1 of the Constitution, only states that the Vice President could only become “Acting President.” Before the 25th Amendment, there was no such thing as an “Acting President,” even when Presidents were incapacitated. In fact, a President had to die, before a Vice President had any authority outside of their own office.

This means even if Joe Biden is stripped of his responsibilities as President under the 25th Amendment, that Kamala Harris will still be Vice President with the title of “Acting President,” which two previous Vice Presidents (Geroge H.W. Bush and Dick Cheney) have held that title. One thing the 25th Amendment doesn’t make clear is what happens to a sitting President if they’re stripped of their authority and responsibilities. Do they become merely a ceremonial President? I’m guessing it’s debatable as to what exactly happens to the sitting President if things were to ever progress all the way through such a process.

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