It occurs to me that …
… the 25th Amendment is crying out for revision. It clearly doesn’t work in its present form. Despite the amendment and despite Joe Biden’s obvious mental decline and inability to discharge the duties involved in being President of the United States, it hasn’t been invoked and that has allowed a nameless and faceless bunch of unelected aides to run the country.
Why? Because that’s the way the Democrats wanted it.
Let’s look at the relevant elements of the amendment. First we have Section 3:
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
This part is fairly straightforward and is about voluntary relinquishment on the part of the president. It was never activated by Biden – either because he refused or because those in power wanted him to remain in place as a convenient figurehead.
Then there is Section 4. It’s more complex and involves actions by a president and actions by the Cabinet and Congress:
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.
But during the Biden administration, despite the Cabinet and Vice President knowing of his disability, nothing was done. In fact, there was a huge effort by the Cabinet, Harris, and the MSM to cover up the entire situation. It’s really quite extraordinary; politics, in the sense of “what’s good for the Party and bad for Trump?” took precedence over everything else.
It’s an example of the truism that laws are only as good as the people executing them. That’s why, even though I started out this post by saying the 25th Amendment needs improvement, I can’t think of a way to do it that wouldn’t fall prey to the same basic problems. I doubt very much that the amendment’s drafters ever thought of the particular situation we’ve found ourselves in during the Biden administration and particularly in this lamest of lame-duck periods since the 2024 election.
If any of those Cabinet members show their faces and submit to interview, they need to be asked rather directly about this. I’m looking at you Secretary Pete.
A native Nebraskan lawyer wrote the 25th Amendment. He naively assumed that there would be people of good faith in the Cabinet and Congress that would force the issue. Big mistake! But that was a much different time.
Keep in mind Trump’s first cabinet was probably chock full of people who would have thrown him under the bus the moment he exhibited any signs of impairment.
Don’t forget that the acting president would have been Harris. Based on reports that she had high staff turnover & disagreements between the two staffs, failed to study or listen to briefings, was basically inept, and had word salad issues and that cackle, perhaps the Biden cabinet did not want to give up power, report to Harris, or lose their job. So, they just continued on.
Based on what we have seen with JD Vance and the quality of the new Cabinet, if something happened to Trump, I think everyone would agree to an acting President. This is the difference is between putting America first vs maintaining your own power. I think Trump would want the smooth running of the country. I hope that Trump and Vance have “that talk”.
But during the Biden administration, despite the Cabinet and Vice President knowing of his disability, nothing was done.
Because it would have been pointless. Biden would simply have “transmit[tted] to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists”, and that would be that, because he’s not too “disabled” to write that letter.
And there is no way 2/3 of both Houses of Congress would overrule him. They could impeach him more easily than remove him. If they tried, he’d go on every legacy media news program and complain at length about a coup attempt. Which it would be. Biden is not an incapacitated President. He is old, lazy, corrupt, possibly senile, but alive and not incapable of occupying the office of President, and then promptly fired the Cabinet.
Biden is not so “disabled” he can’t be President. He’s not under anesthesia, comatose, or kidnapped. He is only so “disabled” as to be a terrible President.
This is a case of “be careful what you wish for”. They wanted to use the 25th Amendment against Trump in his first term, and would have if it was easy to do.
The 25th Amendment process SHOULD be hard. It was not a secret that Biden was old, that old people just get older, lose their sharpness and even get senile, or that the Dem-adjunct legacy media would try to cover it up if that was happening. All that was priced in when Biden was elected, and elections should not be overturned easily.
The 25th is intended for genuine incapacity in the President, it’s not for being an old President who takes a lot of days off or for a terrible President who lets God knows who run everything behind the scenes.
Niketas:
Senility is a form of incapacity. Biden was not just old or vacation-prone.
@neo:Senility is a form of incapacity.
If Biden can transmit that letter, he’s not incapable enough to be removed by the 25th Amendment, according to the plain language of that Amendment. Biden cannot be defined out of office by calling “senility” a form of incapacity, any more than Trump can by redefining “insurrection”.
Either Biden can and does transmit that letter and he stays President, or he can’t or doesn’t and he’s removed.
I don’t know what process you are looking for, but it would be an end run around elections and impeachments if the President by his own unilateral act couldn’t stop the process.
As for “senility”, only Biden’s medical team knows for sure. The legacy media was claiming Trump had dementia in his first term and in this election using the same kind of video evidence that we were using to say Biden was senile.
One final thought from the Alzheimer’s Society:
Like the rest of the Constitution, the 25th Amendment only works for a people of high moral character, as John Adams pointed out. The voters that elect these Democrats, and the politicians and cabinet members themselves, do not meet that requirement.
Not a runaround of impeachment. The process has to start with the VP and a majority of the cabinet. Essentially it’s the president’s own team that’s calling the foul. And if they fail, they’re all fired.
(Can the president fire the VP?)
Then there is going to be a Congressional investigation or two. Only after which is there a vote. Presumably a president would have some support from his own party.
How much input did China Joe* have on all those pardons and commutations? A letter sent out under his name means nothing.
It seems Democrats are happy with unelected bureaucrats running the federal government.
Niketas makes a very good point that the 25th Amendment process should not be so easy as to allow an effective coup against an elected President. Nevertheless we are left with the hideous spectacle of the American people being gaslighted about Biden’s condition for his entire term while God-only-knows-who is pulling the strings.
The best remedy is simply not to elect any Democrats before they have learned their lesson. Which may not be until the Twelfth of Never.
rbj1: “It seems Democrats are happy with unelected bureaucrats running the federal government.”
By sheer coincidence “unelected bureaucrats” are overwhelmingly Democrat.
If Biden can transmit that letter, he’s not incapable enough to be removed by the 25th Amendment, according to the plain language of that Amendment.
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You did not derive that assessment from the plain language of the Amendment.
Biden himself (and his camarilla) did not want him to take a voluntary leave of absence. His disposition in that regard does not differ from that of Woodrow Wilson and the missus. It is just that there is a ready legal avenue to do so which there was not in 1919. The only formal exit for Wilson was resignation. Not a bad idea, but the two of them were too antagonistic to Thos. R. Marshall to countenance that.
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An improved set of formal practices would be helpful in the contingent circumstance that we had something approximating a public-spirited political class. We haven’t had that for a while.
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At the very least, it should require a majority vote of a series of conciliar bodies which do not serve at the President’s pleasure to impose a forced leave of absence.
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Another thing from which we would benefit would be prescribed age ranges to be eligible to stand as a candidate for public office. Suggest that you should be between your 39th and 72d birthday to stand for election if the population of the jurisdiction exceeds a certain level. For jurisdictions with smaller populations, the range might expand symmetrically according to formula, with the lower bound approaching 25 asymptotically and the upper bound approaching 86 asymptotically. The certain level might be 1,000,000 residents (if running for a seat on a conciliar body); 100,000 residents (if running for a specialized executive or quasi executive position); and 50,000 residents (if running for a general executive position). As for judges, retirement on a standard date the calendar year they reach their 76th birthday should be the order of the day; retirement should mean just that – that they do not function as a judge anymore.
Like the rest of the Constitution, the 25th Amendment only works for a people of high moral character,
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I’ll wager it can work for people with passable moral character. We don’t have a critical mass of such people in federal office today.
As for “senility”, only Biden’s medical team knows for sure.
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No, we know for sure. People who have seen his medical records know the precise source and contours of his impairments, which is not public knowledge.
Niketas:
If he cannot discharge his duties because of senility he is incapacitated. It is clear that people close to him have realized for a long time that he could not discharge his duties. The way the amendment is worded, the Cabinet and Congress can make the decision and there is no definition of the exact type of incapacity or degree of incapacity necessary. Senility is clearly an incapacity and people can write letters – or aides can write them for the person – and be quite senile and incapacitated. It is not necessary that the person be without speech or writing at all and not know who he is or where he is for the amendment to be activated.
@neo:If he cannot discharge his duties because of senility he is incapacitated.
Agreed, but only his medical team and whoever they have briefed knows if he actually has dementia.
It is clear that people close to him have realized for a long time that he could not discharge his duties.
Some of them have leaked as much to the press, agreed.
The way the amendment is worded, the Cabinet and Congress can make the decision and there is no definition of the exact type of incapacity or degree of incapacity necessary.
Like “impeachment”, it’s up to Congress to decide what a “high crime and misdemeanor is”, with the 25th Amendment the Cabinet and Congress can decide what “inability” is. But you inadvertently left out a step in between the Cabinet and Congress, which is crucial to understanding why it isn’t happening:
The President gets an opportunity to declare himself capable. If he can do that, then as far as the 25th Amendment is concerned, he is back in office, unless 2/3 of each House of Congress disagrees, which is a higher bar than impeachment.
It is not necessary that the person be without speech or writing at all and not know who he is…
True, and I never said that it was. But it’s that crucial second step you inadvertently left out of your summary where that would come into play and why I kept bringing it up. If the President is literally comatose or unable to communicate, of course he can’t transmit anything to Congress. But Biden is compos mentis enough to dispute that he’s incapable as far as the 25th goes, and he’s not so incapable that 2/3 of each House of Congress would disagree with him.
The 25th is set up so that if the President is able to dispute his inability, he cannot be removed, unless 2/3 of each House of Congress disagrees. Biden is not so far gone that he cannot dispute his inability to be President, and not so far gone that 2/3 of Congress would remove him.
I generally agree with your last comments, neo.
I think the context of the 25th’s adoption is important. It was written and ratified in the aftermath of the JFK assassination at the height of the Cold War when a clear and rapid transition of executive authority could be critical to the functioning of the US government. We were faced with the possibility that an attack might simultaneously incapacitate the President and multiple people in the Presidental line of succession, and the transition of Presidental powers in that scenario had never been tested. The aftermath of the attempt on Ronald Reagan’s life is a stark reminder that even in a relatively calm period confusion might reign for several hours after a President is rendered unfit to serve.
Though the language used is likely purposefully ambiguous in order to cover as many contingencies as possible, the procedures outlined in Section 4 of the 25th clearly contemplate a President who is presumed alive but for some reason physically unable to carry out his executive duties in such a way as to be readily diagnosable by lay persons (the VP, the Cabinet, and Members of Congress). While I agree that mental incapacity is not specifically ruled out, the inherent ambiguity of such a determination is a justifiably high bar to action. I also don’t see any way to revise the operation of the 25th to make it easier to remove a President who is exhibiting signs of mental impairment that would not also make it easier to use the 25th to remove a President by parliamentary maneuvering of the kind that resulted in Biden being removed from the Democrat Presidental ticket.
The controversy surrounding Biden’s competency is an unfortunate situation but the ultimate solution is going to be a political one rather than legal. I think this is the argument that Niketas is making. Biden wasn’t removed via the 25th because removing a President via the 25th is purposefully extremely difficult if the person occupying the office is even marginally in control of his mental and physical faculties. Yes, Biden was a lousy President because he was only marginally mentally and physically competent but all of the evidence suggests he would have been a lousy President even if he had been “sharp as a tack.”
Different people have different values, but from my perspective, it’s important to have a single person, accountable to the voters and removable by Congress, in charge of the executive, and from what I’ve read of the deliberations of the Framers they also thought so.
The problem I have with Biden’s performance is that he is clearly allowing unaccountable people to be in charge of the executive.
And so from my perspective, weakening the 25th Amendment to make it easier for the Cabinet to remove Biden would be a cure worse than the disease. You would be setting the Cabinet higher than the President, and they are supposed to report to him. They are not accountable to the voters.
And there is no group of “impartial” “experts” that we could trust with the ejection seat trigger for the Presidency. We have enough trouble with the Supreme Court.
If Biden is a bad President, he can be impeached, which is much easier than the 25th amendment process. If he’s too old and sick to even dispute that he can do the job, that is very strong evidence that he really cannot do the job and the 25th Amendment would be very easy to do in that case. But he’s not incapable of disputing his incapability, so here we are.
If there were some lower bar that couldn’t be used by an unelected Cabinet to eject Presidents they didn’t like, I could support it, but we already have two ways to get rid of a President, impeachment and electing someone else.
@Christopher B:The controversy surrounding Biden’s competency is an unfortunate situation but the ultimate solution is going to be a political one rather than legal. I think this is the argument that Niketas is making. Biden wasn’t removed via the 25th because removing a President via the 25th is purposefully extremely difficult if the person occupying the office is even marginally in control of his mental and physical faculties.
We’re on the same page as far the 25th goes, yes. If the President is able to dispute his inability then he resumes office until 2/3 of each House of Congress determine he is unable.
It is a wise standard because no one has to make an interpretation. If a President is unable to dispute his inability, that’s good evidence the inability exists; if he is able to dispute it, then maybe that’s not evidence he really is up to the job, but putting the Cabinet or a panel of doctors or judges above the President is not the solution.
Congress already has the power to remove Presidents through impeachment and so they are the right people to adjudicate the 25th.
Jimmy – “Like the rest of the Constitution, the 25th Amendment only works for a people of high moral character, as John Adams pointed out.”
Odd that Madison and the other FF didn’t know that there is no politician like that when they ratified the Constitution….
/sarcasm off
Rather than revision of the 25th, it is personal accountability and resultant consequence for a deliberate neglect of duty by Biden’s cabinet that is lacking. Of course, that equally applies to the majority of Congress. Hardly surprising given that a people who in the aggregate lack a “passable moral character” will fail to elect & hold accountable a leadership of “high moral character”.
There was simply no way around the main reason there was no appetite for Biden’s removal or impeachment. As Liz said @ 2:22pm above – no one wanted to replace a senile incompetent fool with Kamala.
Clinton, GWB and Biden had excellent impeachment or removal insurance policies. Nixon and Trump, not so much.
The Framers were naive when the designed the presidency. They assumed that the best man would be elected president and the second best would gladly serve as his VP without much friction. The Framers didn’t take party systems into account so not many years after the original Constitution was written they had to amend it to adapt it to the developing party environment.
Almost 200 years later the Constitution was amended again and the amenders were still naive. They were thinking of a situation where John F. Kennedy might have lived on in a coma and need to be replaced. They weren’t thinking that the president might become senile and yet hang on to the presidency for dear life. You know that the Framers rejected the idea of a plural executive. They didn’t want 2 or 3 or 5 men to share the presidency. Yet a plural executive is what we in effect have. The presidency is a team and so long as the team functions and the VP and Cabinet are under control, the presidency continues even though the elected president’s mental faculties are diminished.
@Abraxas:They were thinking of a situation where John F. Kennedy might have lived on in a coma and need to be replaced. They weren’t thinking that the president might become senile and yet hang on to the presidency for dear life.
They certainly did consider this situation. It’s not like this happened in the distant past, we can look it up:
One of the architects of the 25th Amendment, Birch Bayh, wrote on this in 1995, which wasn’t that long ago for most of us here:
I’m reminded of a sixties poem by W.S. Merwin. Here’s the ending:
______________________________
And at last I take up
My duty
Wheeling the president past banks of flowers
Past the feet of empty stairs
Hoping he’s dead
–W.S. Merwin, “Caesar”
They weren’t thinking that the president might become senile and yet hang on to the presidency for dear life.
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We can have a gander at the Congressional Record, I suppose. Please note, the precedent was Woodrow Wilson’s last 17 months in office. Not sure if his whole portfolio of impairments have been documented. Supposedly, he was paralyzed on his left side.
Clinton, GWB and Biden had excellent impeachment or removal insurance policies.
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Neither Albert Gore nor Richard Cheney were peculiarly unsuitable for the Presidency.
The Vice President and Cabinet are uniquely able to determine when it is in the nation’s best interests for the Vice President to take the reins.
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That’s cute. The framers anticipate a situation wherein the President is at loggerheads with others, but put the decision by default in a collection of people he can fire with the stroke of a pen. Please note, section 4 of the Amendment does not make clear that a congressional finding in favor of the cabinet is final. The president can continue to issue declarations that no disability exists.
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They beefed it. Replace the Amendment. It’s junk.