February 2024 was not a good month for President Joe Biden. It began with special counsel Robert Hur’s mortifying report and ended with assessments like that of Danielle Pletka, who echoed various congressional comments about the president’s disconcerting mental abilities: “[They tell] of a man who can’t go beyond the words on the page in front of him,” wrote Pletka. “He can’t converse on matters of substance.… [F]oreign leaders … talk about a president who is confused, unsure of the subject matter under discussion, distant, disconnected, and all too often incomprehensible.”
Of course, the situation with Biden has been a frightening one for several years now. The question is: What can be done?
READ MORE: The State of the President
The 25th Amendment has been cited as a way the Democrats could clean house and avoid a disaster in the November elections. The crucial part is Section IV, which stipulates that when the vice president and a majority of Cabinet leaders submit to Congress their declaration that the “President is unable to discharge the powers and duties of his office,” the vice president becomes acting president. The president may counter with his own “written declaration that no inability exists,” whereupon he “resume[s] the powers and duties of his office” unless the vice president and his/her support group within four days submit a second declaration to the same effect. Then the battle begins.
The pesky part of this section raises a tangle of political problems, beginning with the understandable reticence of those appointed by the president to turn against him, regardless of his “inability.” Thus, even if Biden were confined to a safe room with coloring books, stuffed animals, and an ice cream machine, his appointees would think hard about the consequences of launching an agonizing constitutional protocol to remove him. Further, Vice President Kamala Harris would have to convince a majority of her colleagues, sub rosa, to join her, a difficult task even for someone more grammatically adept than she is. And this initiative would be hugely embarrassing for Democrats nationwide. Finally, the Biden administration would not succumb to a challenge like this without fighting back vigorously.
This is the messy part about Section IV, which could lead to a constitutional crisis based on this question: Who is president during the four-day period launched by the president’s declaration?
One interpretation of Section IV assumes that the president’s declaration puts him back in power immediately. An infuriated Biden likely would fire the disloyal Cabinet members, who serve at the pleasure of the president, and replace them with loyalists. Obviously, this would make it impossible for the vice president to secure another vote; in this case, Harris would be isolated, powerless, and humiliated.
But “that reading is wrong,” asserts constitutional scholar Brian C. Kalt, who also admits that the amendment could have been written more clearly. “If and when the President pronounces himself able, the deciding group has four days to disagree. If it does not, the President retakes his powers,” he avers. This position is supported by the legislative history of the provision as well as by extensive commentary found in law journals and the Congressional Research Service. After that, Congress has 21 days to decide the issue, and a two-thirds vote in each chamber that supports the acting president keeps its occupant in office; short of that, the original incumbent remains.
These are immense hurdles to overcome, and it is unlikely that any vice president, even with the support of allies in the Cabinet and throughout the country, would ever initiate the procedure. Thus, Section IV has never been tested and likely never will be. Certainly, neither political party would want to go through the humiliation of having its standard bearer put through the process. What good is it, then? Probably this: to shout across the land that the incumbent’s shortcomings are frighteningly severe and constitute a clear and present danger to the survival of the republic.
All in all, not a bad way to use the 25th Amendment to the Constitution.
Dr. Marv Folkertsma is a retired professor of political science at Grove City College in Grove City, Pennsylvania.