Why the prospects of the 25th Amendment being invoked on Biden is unlikely

Since its ratification in 1967, the 25th Amendment has never received more attention than in recent years. Beginning in 2018 with a then-“anonymous” op-ed that stated a secret group of Trump administration officials were considering invoking Section Four of the amendment to remove Trump from power and culminating with the events of Jan. 6, 2021, the only section of the amendment never to be invoked has been a popular topic of online searches, op-eds and punditry. (And for those of us who study the 25th Amendment, please know we appreciate your interest!) Subsequently, the amendment is back in the news following President Biden’s alarming debate performance last Thursday, which has led to calls for its consideration by House Speaker Mike Johnson (R-La.), among others. However, as during the Trump administration, this attention ignores the requirements of invoking Section Four. 

Since the drafting of the Constitution, the guidelines for removing a president due to a disability have presented a myriad of constitutional challenges. However, following President Dwight Eisenhower’s heart attack in 1955, followed by a 1957 stroke which temporarily robbed him of the ability to speak, the ever-present threat of a Cold War confrontation necessitated a mechanism for removing a president who was either unable, or unwilling, to admit to his own incapacitation. Cognizant of this danger, Eisenhower entered into an agreement with Vice President Richard Nixon that would allow Nixon to temporarily assume the presidency if Eisenhower were incapacitated, following “ such consultation as seems to him appropriate under the circumstances.” 

Following the assassination of John F. Kennedy in 1963, Congress finally turned its attention to the perils of executive disability and succession. However, the process for removing a democratically elected president from office raised a number of dangers. Specifically, who was best suited to judge a president’s ability while at the same time preventing a power grab by a would-be successor? Subsequently, the decision was made to vest such a power within the Cabinet, while providing Congress with the power to arbitrate any disputes between a president and the Cabinet concerning the president’s ability to discharge the duties of office.

As a result, invoking Section Four requires the vice president and a majority of the Cabinet to declare the president unable to discharge the duties of office. Thus, both Vice President Kamala Harris and a majority of the Biden appointed Cabinet would have to declare their belief that Biden is mentally unfit to discharge his duties. This is the first and most significant hurdle, as any vice president will be inherently reluctant to level such a claim due to perceptions of being a usurper to the Oval Office.

Therefore, it would likely fall to a member of the Cabinet to raise such a concern. If that scenario seems plausible, ask yourself which member or members of the Biden Cabinet would dare to raise the prospect of not only removing Biden from power but also ending his reelection chances and casting the Democratic Party into a state of chaos just four months before Election Day.  

And while the bedlam of an open convention in August would present a political sideshow the likes of which we have not seen in generations, it would pale in comparison to what would occur if Biden challenged his Cabinet’s decision. In this scenario, Vice President Harris and a majority of the Cabinet would transmit a letter to Congress declaring their belief that Biden is unable to discharge the duties of his office, thus making Harris acting president. However, Biden could then transmit his own letter stating he is able to discharge his duties, thus returning him to the presidency. At that point, Harris and the Cabinet could overrule Biden with another letter and return Harris to the role of acting president. Were this to unfold, both the House and Senate would then have 21 days to determine whether Biden was capable of serving as president, with both chambers needing a two-thirds majority to remove Biden from power.  

While this scenario would make for an excellent arc of episodes on “The West Wing” or “House of Cards,” the prospect of it unfolding in front of the nation is alarming to say the least. However, the remarkably high threshold for removing an elected president in the midst of his term was exactly what the drafters of the 25th Amendment had in mind when they created a mechanism that would be utilized in only the most extreme of circumstances. And while the guidelines of the amendment only require a majority of the Cabinet’s support, it is next to impossible to imagine a divided Cabinet seeking to undertake such an arduous task without widespread support both inside and outside of the executive branch. 

Therefore, while the calls for invoking Section Four of the 25th Amendment may again be loud, the prospects of these calls emanating from within the Biden administration are virtually nil. 

Jim Ronan, P.hD., is an adjunct professor of political science at Villanova University and the author of “Living Dangerously: The Uncertainties of Presidential Disability and Succession.”