DANIEL VAUGHAN: Can Joe Biden Be Removed By The 25th Amendment?

 July 5, 2024

Democrats are debating whether Joe Biden can finish his run for President. If he can't run after the disaster of a debate, that raises the natural follow-up: Is Joe Biden still competent enough to be President of the United States? Some left-wing writers are arriving at that conclusion, demanding Biden be removed and replaced by Vice President Kamala Harris.

It's been a novel theory ever since Democrats started recommending it to remove Donald Trump. The party that claims to defend democracy is hyper-interested in deploying break-glass-in-case-emergency constitutional provisions that subvert our democratic-republican processes.

Removing Biden with this process is highly unlikely. To understand that, however, we need to know why the amendment exists.

Why We Needed The 25th Amendment

The 25th Amendment was passed in the aftermath of the Kennedy assassination. The Amendment was needed to streamline the replacement process for the President and Vice President. The immediate fear after Kennedy was the question of who the President was when he was hospitalized. The Constitution doesn't say.

During George W. Bush's administration, he temporarily transferred power to Dick Cheney during a colon examination that required sedation. Ensuring there is never a gap in leadership at the most powerful office in the land is critical. There remain questions about what would happen if a similar situation were to occur to the Vice President, but we'll skip exploring that today.

The Amendment also provided a set of procedures to lay out what happens in the event of Presidential resignation, something not contemplated by the Constitution. The Watergate scandal saw these procedures kick in heavily, "first when Gerald Ford replaced Spiro Agnew as vice president, then when he replaced Richard Nixon as president, and then when Nelson Rockefeller filled the resulting vacancy to become the vice president."

25th Amendment And Biden Resignation

If Joe Biden voluntarily decides to step down and resign, then this is easy. He does that, and the constitutional procedures kick in to ensure Kamala Harris steps into the Presidency. Afterward, Harris would nominate a new Vice President who would have to pass a majority vote in both chambers of Congress.

But when most Democrats refer to the 25th Amendment, they're referring to the complicated Section 4, which is supposed to deal with situations where the President is alive but incapacitated in some way. The drafters were thinking of a situation where Kennedy was shot, in a coma, or brain dead but still alive. What to do in that situation?

What If The President Is "Incapacitated?"

In that event, Section 4 states, "Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit 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, the Vice President shall immediately assume the powers and duties of the office as Acting President."

Think of it like this: the President is in a coma. The Vice President or the cabinet is supposed to inform Congress. Congress ratifies the Vice President's taking over. This gives the country a President in those situations where unexpected incapacitation happens, like a failed assassination attempt where the President cannot perform the duties.

However, it doesn't end there. Let's say the President is in a coma but makes a rapid recovery. Section 4 continues, "Thereafter, 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..."

Congress Decides If Removal Is Permanent

Triggering the 25th Amendment does not remove the President; it's meant to temporarily replace the President until a recovery arrives. We're still not done, though. Let's say the Vice President and cabinet disagree and say the President is still incapacitated. What then? The Vice President and cabinet must reassert their claim to Congress:

Thereupon Congress shall decide the issue ... if Congress ... 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.

Congress ultimately has to decide whether to remove the President in this situation. Why is this important for us? Let's play out the Biden situation. 

Let's say Kamala Harris and Biden's cabinet agree that Biden must go. They submit a declaration to Congress that Biden is incapacitated. Biden could accept that and move on. However, he's also in his right to deny this charge. And if he says that, he remains in power. 

Harris and the cabinet would have to assert it twice. That second assertion would trigger a mandated vote by Congress. To remove Biden, the Senate and House must achieve a two-thirds majority vote to keep Harris as President. 

Biden's Removal Is Unlikely With The 25th Amendment

Currently, the Senate is closely divided, with the tiebreaker going to Democrats. Republicans have a dwindling majority in the House, with less than five votes separating them from the minority. Removing Biden via the 25th Amendment would take one of the most bipartisan votes in United States history at a moment when Congress is the most closely divided it has ever been.

None of the congressional leaders could guarantee meeting those thresholds. Some Democrats would support Biden ahead of the election, and Republicans would be incentivized to support Biden merely because he's a political liability ahead of November. That leaves Harris, the cabinet, and the few lawmakers willing to vote out Biden in a bind. They triggered a constitutional crisis for a failed vote to remove Biden.

The 25th Amendment remains a pipe dream to remove politicians who can still fulfill some of their duties. It's not meant to remove Biden or Trump. You do that through the ballot box.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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