Anyone who’s dealt with an aging parent knows that Biden’s acuity is headed in one direction, possibly precipitously. So the world can’t afford any of the rationalizations now floating around — that his staff runs things anyway or, at worst, that if he deteriorates too much, the Cabinet can always invoke the 25th Amendment and replace him with Vice President Harris.
Leadership cannot rest in a committee; one person has to set strategy, resolve disputes among advisers and make critical, possibly split-second decisions. Nor, for reasons laid out by legal expert Brian C. Kalt in 2018, can the Cabinet simply invoke the 25th and sub in Harris whenever Biden becomes too diminished to do his job.
Passed in the wake of John F. Kennedy’s assassination, Section 4 of the 25th Amendment works well if the president is in a coma: The Cabinet and the vice president can vote to make her “acting president,” then hand that power back if and when the president recovers. However, for obvious reasons, Section 4 makes it easy for the president to reclaim his powers, which makes it ill-suited for sidelining a president who becomes impaired, but not entirely disabled. A conscious but erratic president can declare that “no inability exists,” which gives the Cabinet four days to either return power to him or refer the question to Congress.
If it’s thrown to the House and Senate, lawmakers can take up to 21 days to deliberate before voting on whether to pronounce the president “unable.” To pass, such a vote requires a two-thirds majority; otherwise the president resumes his powers. And if he loses the vote, he can restart the process by once again declaring that “no inability exists.”
If Congress sends a clear enough message, he might not bother trying again. But of course, the reason for invoking Section 4 would be that the president has started making bad decisions. More to the point, sending this message would take a lot of Democratic votes. And if his party is finding it too difficult to force him out now, consider how much more difficult it would be after he is reelected.
At that point, no one could sugarcoat the issue as a question of whether Biden has the physical stamina to campaign. The only way to say it would be: “Sir, you’re no longer competent to be president.” This would be hard for either the Cabinet or party leaders to tell the big boss, especially without some assurance of support by two-thirds of Congress. (Imagine their future if they lose the vote and he retakes power.)
This would be only the first of many obstacles to invoking Section 4. Consider the political fallout: It would amount to a confession that the party was wrong to renominate Biden and to insist he could still do the job.
Mustering the necessary courage becomes even harder if Republicans control one or both houses of Congress, because making the vice president acting president leaves the speaker of the House — currently, Republican Mike Johnson (La.) — next in line for the presidency. To be appointed, a new vice president would need to be approved by a majority of both the Senate and the House. The GOP might have an effective veto.
Perhaps naively, I think Biden’s staff might invoke the 25th Amendment, despite the obstacles, if it mattered enough — if, say, China invaded Taiwan and Biden proved too foggy to negotiate the crisis. But crucial decisions would remain on hold while advisers debated whether to remove him. The mere possibility of such instability might invite strategic rivals to test us.
It’s still fair to consider these risks a lesser danger to the United States than another four years of Donald Trump (especially since Trump, at 78, is also at elevated risk of diminished capacity). This is the calculation I expect to make if Biden is still on the ballot come November. Today, though, Democratic decision-makers have time to make a better choice. It’s the choice their Republican counterparts have been refusing to make for eight years: to declare, at some personal risk, that their candidate isn’t up to the job, and the party must find a new leader who can steer the country safely through the next four years.
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