 A dispute from the president about his capacity to perform the job would send the question to Congress, which could then decide to give the vice president the powers of acting president by a two-thirds vote of both the House and the Senate. You never have the vice president and the cabinet declare the president incapable of serving in office. Bernie Bennett in Washington. A federal appeals court has allowed the U.S. Education Department to move ahead with a plan to lower monthly payments for millions of student loan borrowers, putting on hold a ruling last week by a lower court.