Yesterday’s blog post on the need to start pressuring Biden’s cabinet to invoke the 25th Amendment drew a lot of readers and commenters, with much concern expressed about what happens next. Because the 25th has never been invoked, there is some confusion about whether or not a new vice president would need to be appointed.

As commenter Patricia Kunz pointed out, under the terms of the Amendment’s Section 3, no official vacancy is created in the office of Vice President:

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

This means that the Vice President remains in office as VP and only becomes “Acting President.” While all the “duties and powers” (Section 4) of the presidency devolve upon the Acting President, there is no vacancy in the office of Vice President.  So, there is no need or ability to appoint a new Vice President.

Under current circumstances, this means that if Kamala Harris were to die in office, there would be a vacancy in the vice presidency, and no one able to nominate a replacement veep, as Section 2 of the 25th Amendment specifies:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Article II, Section 1, Clause 6 of the Constitution specifies:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The Presidential Succession Act of 1947 put the Speaker of the House and President Pro Tempore of the Senate in line for succeeding the president if no vice president is in office. After them, cabinet officers, in order of the age of their departments, are in line. But it does not speak to the office of “Acting President” as later created by the 25th. But it would provide ammunition for the GOP-led House to argue that Kevin McCarthy ought to assume the powers and duties of “Acting President.”  However, there is no constitutional or statutory authority that I know of for such a move.

The House could also impeach the president, the incapacitated Joe Biden, with only a majority vote. It would then be up to the Senate to either convict or acquit him, which would require a two-thirds vote for a guilty verdict. With a leadership crisis at top and an obviously incapacitated Biden, how many senators would cast their ballots to keep nobody in charge of the executive branch by acquitting an impeached Biden? It would cause a constitutional crisis like no other in history. With the office of vice president vacant by death and Biden impeached and removed from office, McCarthy would be in line for the presidency.

But assuming Vice President Harris does not tragically die, how long does an “acting president” remain in office remain as a kind of super-veep, with all the “powers and duties” of the president without actually being sworn in a president?  The answer is found in Section 4:

…when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Should Biden, or Dr. Jill, or the puppet masters submit a written declaration that for the first time in history, dementia has been reversed, Kamala reverts to the “powers and duties” of the vice president. UNLESS, that is, a majority of the cabinet and a two thirds majority of both Houses of Congress disagree. In that case, the veep remains acting president and no vacancy exists in the office of vice president.

Note that it is actually easier to impeach a president than it is to restore him or her to power after the 25th Amendment is invoked. A simple House majority suffices to impeach, while two thirds are needed to restore a president sidelined by the 25th Amendment to power.

This would seem to put the GOP House in a superior bargaining position in determining who shall exercise the powers of the presidency.