Time for a new thread on acting secretaries and the 25th Amendment. Tons of folks are tweeting questions or, worse, spreading inaccurate hooey of the sort that moved me to write a whole book on §4 of 25A ( http://tinyurl.com/y4r3xlhy ).

Let's spread truth on Twitter for a change.

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1. Acting secretaries are not a 25th Amendment issue now. Contrary to scores of tweets declaring the Cabinet is "mostly" or "full of" acting secretaries, there is just 1 vacancy/acting secretary: DHS. The other 14 posts that'd vote on 25A4 have Senate-confirmed heads now.

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2. Lots of tweets assume acting secretaries can't vote on 25th Amendment §4. But at most it's unclear. The scholarly consensus is actings *can* vote, based mainly on a 1965 House committee report. My book ( http://tinyurl.com/y4r3xlhy ) shows the legislative history isn't...

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...so clear. But the text supports actings voting. If they aren't the "principal officers of [their respective] executive departments," who is? And actings typically *are* Senate-confirmed for whatever lower (but still high) post they became acting secretary from. Plus,...

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...structurally, it would've made no sense for the 25th Amendment's framers to empower presidents to shut down 25A4 simply by firing people.

3. Even if actings can't vote, they'd be taken out of the denominator too. 25A4 doesn't require "8 votes," it requires a majority...

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...of the Cabinet. Say you think actings don't count, and after Perry leaves there are 2 actings. OK, so the Cabinet has 13 people instead of 15. Now you need 7/13. Totally doable if the circumstances are right (which they aren't now, but that's a different thread).

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4. Confusion about whether acting secretaries' votes count in a 25th Amendment §4 case only matters if the result turns on it (e.g. there's a majority if you don't count actings, no majority if you do). But practically speaking if the president is contesting a 25A4 action...

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...he'll win easily in Congress (he only loses if both houses vote 2/3 against him) if the Cabinet is divided. So practically speaking, in a contested case the Cabinet needs to be unanimous or close to it. But if it is, nothing turns on whether the actings' votes count.

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5. So acting secretaries aren't an issue.

If you see one of the 100s of tweets a week wondering about acting secretaries and the 25th Amendment, or making false claims, send this thread their way. Good information spreads as easily as bad information if we try hard enough.

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