I am happy to say that we are only 13 episodes from the end of Homeland. Elizabeth Keane, the first female president of the United States, has just been kicked out of office through the use of Section 4 of the 25th Amendment. Arizona Senator Sam Paley has convinced the majority of her Cabinet members, and the Vice President, to sign a certification that she is unfit for office. This determination was based on her failure as a politician to convince others (and sometimes herself) that her policy of compromise with bad foreign actors is best for the country, her reaction to a pre-inauguration assassination attempt, when she rounded up 200 high level officials of the CIA and other security agencies and jailed them (without trial, apparently) as co-conspirators who wanted her dead, and a series of bizarre occurrences that she blamed on Russian operatives, but that her opponents blamed on her.

Because Section 4 of the 25th Amendment has not yet been used to remove a President, and because the Supreme Court has not ruled on any cases involving this section of the Amendment, there is some uncertainty as to how it would actually be used. In Homeland, it worked as follows: (1) a majority of President Keane’s Cabinet members and the Vice President signed a document certifying to her inability to “discharge the powers and duties of [her] office” (the language of the Amendment uses “his”), (2) the Vice President told the President that he was now in charge, and she was no longer the President, and (3)  President Keane announced the document had no effect because she had fired most of her Cabinet, and that she  had gone directly to the Supreme Court to argue that those who signed the declaration had no basis to claim that she was “unable” to perform her duties, that they simply did not like the way she was performing her duties, and that the 25th Amendment was not written to be used for such blatantly political purposes (and, of course, that in any event, she had fired her Cabinet before they had fired her).

The Supreme Court, by a 5-4 decision, quickly ruled against the President, although we (mere viewers of a TV series) do not know the basis of the Court’s ruling.

In real life, where there is now some talk about the eventual use of the 25th Amendment to end the presidency of Donald Trump, things probably would not play out as they did in Homeland.

We would have the real life question of what “inability” means and, assuming that it doesn’t mean what it meant in Homeland where it was a question of whether the President was simply acting in a way that was politically not acceptable to the signers of the declaration, there would have to be some determination (presumably a judicial determination) of what “inability” does mean, and there would have to be evidence that the President did indeed suffer from the form of inability to carry out his or her duties that would be acceptable to the Supreme Court (the Supreme Court we have today, conservative as it is).

Secondly, we would have the question of who is entitled to sign such a declaration. The Amendment itself does not use the word “Cabinet”. It uses “the principal officers of the executive departments or of such other body as Congress may by law provide”. There is legislative history from the debates leading to the ratification of the amendment that this refers to the President’s Cabinet, but clearly we have something else here that the Supreme Court could focus on. As Congress has not designated any other body by law, we are left to determine what the “executive departments” are and who are their “principal officers”.

There are 17 government departments whose leaders have the title Secretary and whose appointment must be ratified by the Senate. Traditionally, these individuals have comprised a President’s Cabinet. But is, say, the Secretary of State the only “principal officer” of the Department of State? Another question to be answered.

And, if you look at President Trump’s listing of his Cabinet members, you find 24 names, not 17. The others are the heads of the EPA, OMB, SBA, CIA, the Director of National Intelligence, the U.S. Trade Representative, and the President’s Chief of Staff. Each of these appointments, with the exception of the Chief of Staff, has also been ratified by the Senate.

So here the Court would have a number of questions posed to it. Do the 17 members of the Cabinet constitute the “principal officers of the executive departments”, does the President have the right to appoint anyone he or she wants to the Cabinet, and so on, and so on.

In addition, the Amendment does not mention anything about the authority of the Supreme Court to review any of this, so the Court’s jurisdiction may also be in question. The Court found itself in trouble after ruling in Bush v. Gore as to what was required in Florida to determine the certifiable result of the election, a result which would in fact (and did) decide that election. It would have led to a true constitutional crisis had not Al Gore conceded the election just to avoid such a crisis.

Since then, in some instances, the Court has carefully (and in my mind unfortunately) tried to avoid some political questions, namely most visibly in its determination not to get involved in decisions where gerrymandering has been alleged. Perhaps the Court would simply say: we have no jurisdiction. This is for the other two branches of government to straighten out.

What the Amendment does say is that if the President disputes the decision of her or his Cabinet and refuses to leave office, it becomes a question for Congress to decide. And, in order for the Vice President to replace the President, a “two thirds vote of both Houses” is required to remove the President. As we know, in the case of a presidential impeachment, two thirds of the Senate must vote to convict and this super majority has never been achieved (although it came very close to be achieved in the Andrew Johnson trial). Here, you need a “two third vote of both Houses”. [I am not going to assume that there is a difference between the language of the Amendment and an alternative phrase “a two thirds vote of each House”, although it does set itself up for another potential argument.

My conclusion? Don’t think that it would be easy to remove King Donald from his throne, even in the unlikely event that the votes of his Cabinet (however defined) would be there. Do not unbuckle your seat belts. Do not take you eyes off the road.