Anyone who has cared for elderly parents knows Biden’s acuity is moving in one direction, perhaps exponentially, which precludes any of the justifications currently circulating — that his staff is running things anyway, or, worse, that if his condition worsens too much, the Cabinet can always invoke the 25th Amendment to replace him with VP Harris.
Leadership can’t be left to committees: One person must strategize, resolve disputes among advisers, and make crucial decisions, sometimes in split seconds. And for reasons explained by legal expert Brian C. Kalt in 2018, the Cabinet can’t simply invoke Article 25 and install Harris as a replacement if Biden becomes too infirm to perform his duties.
Section 4 of the 25th Amendment, passed after the assassination of John F. Kennedy, comes into play if the president is in a coma. The Cabinet and Vice President can vote to appoint the Vice President as “Acting President” and then return powers to the President when he recovers. But for obvious reasons, Section 4 makes it easier for the President to regain powers and is not good for sidelining an impaired but not completely incapacitated President. A conscious but unstable President can declare that “incapacity does not exist,” and the Cabinet can choose within four days to either return powers to the President or refer the matter to Congress.
If it goes to the House and Senate, lawmakers can deliberate for up to 21 days before voting on whether to declare the president “incapacitated.” The vote requires a two-thirds majority to pass; otherwise, the president regains his powers. And if he loses the vote, the president can start the process over again by declaring “incapacity does not exist.”
If Congress sends a clear enough message, the president may not need to bother trying again. But of course, the reason to invoke Article IV would be that the president is starting to make bad decisions. More importantly, sending this message would require a ton of Democratic votes. And if his party finds it too hard to get rid of him now, consider how much harder it will be after he’s re-elected.
At that point, no one can discount the issue as to whether Biden has the strength to campaign. The only way to say it would be: “Mr. President, you are no longer fit to be president.” It would be difficult for cabinet members or party leaders to say that to a president, especially without the guaranteed support of two-thirds of Congress. (Just imagine their future if they were to lose the vote and Biden were to return to power.)
This is only the first of many obstacles to invoking Article 4. Consider the political fallout: It would mean the party admitting it was wrong to renominate Biden and insist that he could still serve.
Mustering the necessary courage would be even harder if Republicans controlled one or both houses of Congress, because making the vice president acting president would mean that the speaker of the House (currently Republican Mike Johnson of Louisiana) would become the next president. A new vice president would need to be approved by a majority in both the Senate and the House of Representatives to be appointed, giving Republicans a de facto veto.
Perhaps naively, I think that if it were important enough, say if China invaded Taiwan and Biden proved too ditzy to navigate the crisis, his staff might invoke the 25th Amendment, despite his disability. But key decisions would remain on hold while his advisers debate whether to remove him. The mere possibility of such instability might prompt strategic rivals to test us.
These risks are probably less dangerous for the United States than four more years of Donald Trump as president (especially since Trump is 78 and at high risk of declining capacity). If Biden were still in the running in November, I would make the following calculations: But today, Democratic decision-makers have time to make a better choice, one that Republican decision-makers have refused to do for eight years: to declare, at some personal risk, that their candidate is unfit for office and that the party must find a new leader who can safely lead the country for the next four years.
