This Is What the Twenty-fifth Amendment Was Designed For

In a live broadcast of “The Daily Show” immediately after the Presidential debate last week, the comedian Jon Stewart joked about President Joe Biden’s open-mouthed stare: “A lot of people have resting Twenty-fifth Amendment face.” A once obscure constitutional provision, the Twenty-fifth Amendment became familiar to the public during Donald Trump’s Presidency, when there was

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In a live broadcast of “The Daily Show” immediately after the Presidential debate last week, the comedian Jon Stewart joked about President Joe Biden’s open-mouthed stare: “A lot of people have resting Twenty-fifth Amendment face.” A once obscure constitutional provision, the Twenty-fifth Amendment became familiar to the public during Donald Trump’s Presidency, when there was constant chatter about his mental unfitness and incapacity. (I wrote about it for The New Yorker on five separate occasions.)

The Constitution allows a President who is “unable to discharge the powers and duties of his office” to step aside or be removed and have the Vice-President “immediately assume the powers and duties of the office as Acting President.” Soon after January 6, 2src21, when a mob incited by Trump stormed the Capitol to disrupt the certification of Biden’s win, Chuck Schumer, then the Senate Minority Leader, and Nancy Pelosi, then the Speaker of the House, said that Trump should be removed from office using the Twenty-fifth Amendment, with Schumer describing it as the most effective legal means of removing a President and saying that “it can be done today.” That did not happen. Now is really a good time for Democratic leaders to dust off their knowledge of the Amendment—this time regarding their own party’s President.

The widespread anxieties about Biden’s age-related impairment have increased over time, only to be shushed by his allies. They became most plainly justified during his painful and prolonged public exposure on television during last week’s debate. The fact that many prominent Democrats have yet to say the obvious and instead have told voters not to worry about one bad debate is a poignant national version of the denial that almost every family eventually goes through with respect to an aging patriarch or matriarch. This is clearly happening in Biden’s own family, with his wife, Jill, and his son Hunter reportedly insisting that he continue his campaign, and with Hunter even said to have accompanied Biden to White House meetings. It is time for our leaders to realize that this is not in fact a family matter and take seriously their own constitutional responsibility to determine whether the President—not the team around him—has the capacity to govern.

The “will he or won’t he” speculation in the past few days has been about whether Biden will choose to step aside as the Democratic nominee in the Presidential race, which reflects a desire to leave the President to make the decision about whether he can beat Trump in November. This is misguided. First, it puts the cart before the horse: the initial question for any campaign should be whether the candidate has the ability to lead. Second, if Biden were to step aside as the nominee, we all know it would open up possibly catastrophic uncertainty about who the Democratic nominee will be, even if he were to indicate which candidate he preferred to take his place on the ticket. The chaotic process of quickly selecting a new nominee could consume Democrats and doom their chances in November. That makes it difficult for me to confidently wish for Biden to decide to step aside as the nominee—and likely impossible for him, his family, and Democratic leaders to think it is the responsible thing to do at this point.

But there is a better path. Instead of making a choice between remaining on the ticket or stepping off of it, Biden should resign from the Presidency altogether as soon as possible. The Twenty-fifth Amendment says that in the case of the President’s resignation, the Vice-President—Kamala Harris—becomes the President. (Harris would have to nominate a Vice-President, who would then take office upon being confirmed by both houses of Congress.) President Harris could then run as the incumbent—a benefit to her candidacy that would also offer the stability we desperately need. We would not have to fret intensely about an open convention or anticipate a divisive and bruising fight over who the nominee will be. This allows an orderly transition—in place of mayhem—in which Biden cedes smoothly to Harris and sets the stage for a campaign season focussed on a version of the Biden-Harris Administration with Harris as its representative. By November, President Harris would already have had four months on the job. Biden and those who love him could campaign for her based on his Administration’s record and accomplishments.

If Biden resigns soon, then there is little reason to discuss the ins and outs of the Twenty-fifth Amendment. If a permanent resignation seems too extreme for him to contemplate, the Amendment’s Section Three provides a way for the President to cede the office to the Vice-President without the finality of a resignation. Biden can make “a written declaration that he is unable to discharge the powers and duties of his office,” and Harris would become the acting President. That would still likely place Harris in the political position to immediately become the de-facto incumbent.

But if Biden resists either an outright resignation or a break for the rest of his term under the Twenty-fifth Amendment, then it would be time to look to Section Four of the Amendment, which covers removing the President involuntarily. The Vice-President and a majority of the Cabinet can declare that Biden “is unable to discharge the powers and duties of his office,” whereupon Harris would become the acting President. At that point, Biden could say that “no inability exists” and resume his office, but I can’t imagine that he would do so after his Vice-President and Cabinet have taken such a step. (In that event, Harris and a majority of the Cabinet, or some “other body as Congress may by law provide,” could once again declare the President’s inability, and he could be removed by a two-thirds vote in both houses.)

I doubt it would ever have to get so far as involuntary removal. Indeed, the Twenty-fifth Amendment’s removal mechanism is most useful right now for persuading Biden to leave the office voluntarily—so that Harris can become the President for the remainder of the year. In 1974, a delegation from Congress went to the White House and told President Richard Nixon that he would be impeached if he did not resign, and he resigned the next day. Something similar needs to happen today, with Democratic leaders and Cabinet members talking to Biden about what they might be willing to do under the Twenty-fifth Amendment if he does not resign. This did not happen after President Woodrow Wilson had a stroke, in 1919; his wife Edith took over many of his duties until his second term ended, in 1921, and the American public was none the wiser. President Ronald Reagan began showing signs of Alzheimer’s as early as three years into his first term, according to his son Ron’s 2src11 book, “My Father at 1srcsrc.” His family and staff managed to hide the symptoms from the public as long as he was in office. We should feel grateful that it is much harder to hide or credibly deny such impairment in a President today.

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