The Limits of the 25th Amendment
The 25th Amendment is intended to clarify Presidential succession procedures, but it has severe limits that should be acknowledged.
The 25th Amendment to the United States Constitution went into effect on February 10, 1967.
Its purpose is to clarify several formerly ambiguous points related to the issue of Presidential succession:
Section 1 clarifies that when a President is removed from office by death or resignation, the Vice President becomes the President.
Section 2 states that when the office of Vice President is vacant, the President will appoint a Vice President who takes office upon confirmation of a majority of both Houses of Congress.
Section 3 clarifies the procedure that takes place to temporarily transfer power to the Vice President when the President decides to do so voluntarily for temporary reasons.
Section 4 describes the procedure for the Vice President to take power when the President “is unable to discharge the powers and duties of his office” and refuses to transfer power voluntarily.
In recent days, there has been much talk about President Biden’s dismal debate performance on June 27 and whether it presented evidence of mental decline sufficient to derail his reelection campaign. However, the more immediate concern is whether the President has the capacity to remain in office between now and January 20, 2025. If the President lacks the mental acuity to be a viable candidate for President, it follows that he could very well lack the ability to serve out his term. At least for now, President Biden insists that he is not only staying in office but will stand for reelection.
Politics is a competitive business and the majority of politicians are focused on their self-interest. Democratic insiders have been quietly sounding alarms for days as background sources for articles. Yesterday, more than one article appeared claiming that influential Democratic Senators were pressuring the President to drop his reelection bid.
There’s a reason for the joke that people who need a friend in Washington should get a dog.
Assuming that efforts to force the President out of the election succeed, calls for his resignation will gain force on the grounds that a man unfit to run for reelection should stand down now particularly given the risks to the United States related to the war in Ukraine and heightened tensions in the Pacific.
It is almost inconceivable that the President would voluntarily resign. It is also highly unlikely that Section 4 of the 25th amendment would be invoked, or that it would succeed even if it is invoked. To understand why, let’s take a closer look at the text of Section 4:
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.
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 unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, 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.
Invoking Section 4 requires the Vice President to initiate the process or at least agree to the process. In addition, a majority of the President’s cabinet must vote to invoke Section 4. The Vice President owes her office to the fact that the President selected her as his running mate and even a cursory look at the list of cabinet officials shows that most of them either have longstanding ties to the President or are current loyalists. This is not true just for the Biden Administration, but for any administration. My view is that Vice President Harris has little loyalty to President Biden and would have no hesitation to invoke Section 4 due to her ambitions, but she would need to summon the support of many loyal supporters of the President. Attempting to invoke Section 4 and failing to succeed could destroy the Vice President’s political career within the Democratic Party if the attempt becomes public knowledge, so it is hardly a risk free proposition.
Assuming that the Vice President and a majority of the cabinet agree to invoke Section 4, the Vice President will immediately assume the powers of the Presidency as Acting President. However, the President can declare himself fit for office and reclaim power unless the Vice President and a majority of the cabinet again vote, within four days, to declare the President unable to discharge his duties. At this point, the Vice President would be Acting President and Congress would be summoned to assemble within forty-eight hours. Within twenty-one days of assembling, both Houses of Congress would need to determine, by a two-thirds supermajority, that the President is unable to discharge his duties. If Congress makes that determination, the Vice President continues as Acting President.
The bar to remove a President from power via Section 4 of the 25th Amendment is incredibly high.
The officials who must invoke Section 4 are all politicians who owe the President considerable loyalty. Even if they overcome the natural inclination to reciprocate the fact that the President placed them in their current positions, the President has the power to contest the decision. The officials in his administration must then reassert themselves and then the matter goes to Congress.
Once the matter is presented to Congress, removal of the President via the 25th Amendment must clear a higher bar than removal from office via impeachment.
A President can be impeached with a simple majority in the House of Representatives. A two-thirds supermajority is required to convict the President in the Senate, thereby removing him from office. In contrast, Section 4 of the 25th Amendment requires a super-majority in both Houses of Congress.
There are good reasons to make it quite difficult to remove a President from office against his will, either via impeachment or Section 4 of the 25th Amendment. The President, after all, has been elected by the American people and making it easy to depose a President would inevitably cause instability in the executive branch of the Federal government. The fact that it is difficult is meant to give pause to ambitious politicians in the Vice Presidency and the Cabinet who might otherwise be tempted to mount a coup. The risk of invoking Section 4 is very high and is unlikely to be used except in extreme situations. This is apparently exactly what the framers of the 25th Amendment intended.
The current situation is dangerous because President Biden is demonstrably diminished in terms of his mental capacity compared to his condition when he ran for President in 2020. As I wrote earlier this week in The Trust Deficit, his condition was covered up by his family, his administration, and compliant journalists for months, if not years. It is becoming increasingly likely that the President will be forced to withdraw his candidacy for reelection, but if this happens it will be against his will. It is nearly inconceivable that he would voluntarily resign from office even if his incapacity becomes worse over the next six months.
The 25th Amendment mirrors the original Constitution in terms of drawing general guidelines but avoiding overly prescriptive details, relying on the men and women in power at any given time to be comprised of mostly honorable people who put the interest of the country above themselves, at least in extreme situations. Unfortunately, this assumption no longer seems to be valid. Even if President Biden agrees to stand down from his reelection bid, America will be at extreme risk over the next six months given the very public humiliation of the President and the obvious fact that our enemies are quite aware of the situation.
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