With all the speculation about the 25th Amendment being used against the unlawfully occupying Resident and Vice Resident, it is understandable why Patriots might think that this is a good thing, a way to get a Republican into the Executive Mansion. Get rid of Biden and Harris, and then Speaker McCarthy moves on up!

Before we continue, I can't avoid noting how many people are cheering this development despite having only just last week opposed McCarthy, an alleged swamp creature, becoming Speaker at all. Many wanted and expected Trump to somehow become Speaker to set him up to succeed to the presidency. Yet now everyone seems to be on the "Speaker McCarthy for POTUS" train. Odd how principles shift so quickly when passion and emotion take over...

When it is suggested that Biden and Harris should [or will] be 25th’d, such a double vacancy would have to be the result of 1.) impeachment and removal 2.) death or 3.) resignation, OR 4.) a temporary vacancy due to inability.

As already pointed out, with the Democrats in control of the Senate, we can reasonably rule out scenario 1. Perhaps Biden is suicided or forced to resign a la Nixon, but I think both scenarios 2 and 3 are unlikely. It is possible that Harris+Cabinet may use Section 4 to declare Biden “unable to discharge the powers and duties of his office” and move to have Harris as Acting POTUS. But then the same would have to be done to Harris to create a double vacancy. Problem is that with the VP as Acting POTUS, there is no VP to trigger Section 4 (the Amendment’s drafters brain farted on this one), so scenarios 1, 2 or 3 would have to occur. Even if that happened, technically that’s only removing Harris, and if the inability is removed, then Biden resumes POTUS powers.

Even if by some miracle, a double vacancy is achieved, there’s still one massive constitutional problem. Despite being an officer of the House of Representatives, the Speaker is NOT an Officer of the United States of America and thus, not constitutionally eligible to succeed to the presidency.

For those with or willing to create a [free] JSTOR account, you can get a more in-depth study here. For those wanting a quicker read, here’s my shorter summary of the constitutional issues in play.

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. – US Constitution: Article II, Section 1

The original intent of the Framers was that in the case of presidential vacancy, the VP wouldn’t immediately become POTUS but rather ACTING POTUS. His Ascendancy John Tyler ignored the Constitution and made himself POTUS, much to the objections of John Q. Adams, Henry Clay, the Whigs and even members of his own Cabinet. For whatever reason, nobody had a spine enough to stop Tyler from stealing the office and helping set into motion some major Disunion Dominoes (a story for another post). This issue was finally settled by the ratification of the 25th Amendment, clearly stating that upon a vacancy, “the Vice President shall become President.”

In cases of double vacancy, the Constitution authorized Congress with establishing what would be called the Presidential Succession Order. Congress passed Acts in 1792, 1886 and 1947, with several amendments to the latter, most recently in 2006.

Though the order in the 1792 Act included two members of Congress (President Pro Tempore and Speaker), such order violated the original intent of the Constitution, as was attested by the “Father of the Constitution” (not really the most accurate title, but I digress…) James Madison in both his notes from the Constitutional Convention and in letters such as one to Edmund Pendleton in 1792. For whatever reason, Washington signed the Act and no challenges were made to SCOTUS.

The rise of party factionalism in the 19th Century exposed the massive vulnerability Madison identified in 1792, and wisely in 1886, both President Pro Tempore and Speaker were removed from the order. But a push from the Democrats in 1947 got both put back into the order, albeit reversed from 1792, with Speaker then PPT. Again, nobody has challenged this unconstitutional measure up to SCOTUS, so to date it has not made any ruling on the matter.

But the Constitution is textually and contextually clear that both the Speaker and PPT are officers of the Congress and not “officers” of the USA within the meaning of the term “officer” in Article II. In multiple places in the Constitution, including Amendments, members of Legislature, including its officers, are explicitly differentiated from officers of the USA:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. – US Constitution: Article II, Section 4

Congress cannot impeach members of Congress. The process for the removal of members from Congress is explicitly covered earlier in Article I of the Constitution:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Since members of Congress are not relevant to the impeachment section of Article II, thus the reference to “civil Officers of the USA” cannot include members of the Legislature.

The Senators and Representatives [of Congress] before mentioned, and the Members of the several State Legislatures, AND all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; – US Constitution: Article VI (emphasis added)

Again, Senators and Representatives are differentiated from executive and judicial Officers.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, OR as an officer of the United States, – US Constitution: Amendment XIV, Section 3 (emphasis added)

And again, explicit differentiation between members of Congress and officers of the USA.

Why the dudes on the style committee during the Constitutional Convention removed the “of the United States” from the original draft of Article II, is a mystery. Perhaps they were afraid of hitting a max character limit and thought it was a good way to axe 4 redundant words? In any case, all evidence indicates that without a doubt, the Framers intended the meaning to be “officer [of the United States].”
Again, see the above linked article for a more in-depth textual analysis. Even without the textual arguments, common sense is that allowing a Legislative officer to succeed to the presidency would be a massive violation of the separation of powers doctrine, as well as create a massive vulnerability to be exploited by Party, which was addressed by Madison in his opposition to the 1792 Succession Act.

It would be completely hypocritical for professed Patriots to advocate for the usage of a tactic that would require the violation of the Constitution, regardless of the purported good that such an action might attain. We cannot become the very enemies that we oppose.