President Biden has said only the “Lord Almighty” could convince him not to seek reelection, but a constitutional amendment that Democrats called for against President Trump three years ago provides a path for Biden to leave office or be removed from office in an extraordinary, if highly unlikely, act by Congress.
The 25th Amendment, a little-used provision that was ratified in 1967, allows an ill or incapacitated president to step aside permanently or temporarily, effectively handing power to the vice president. The most politically contentious option in the amendment allows the vice president, a majority of the Cabinet and Congress to remove a president they say is “unable to discharge” the powers of the office.
Neither option is enviable for Democrats in the midst of a high-stakes election. They could further unnerve the nation and open a contentious battle over a new nominee. But Biden is under mounting pressure from Democrats and donors to drop out of the race after his debate performance and subsequent appearances that have called into question his age and mental acuity. They fear the 81-year-old president may not win reelection, a prospect many Democrats believe will endanger democracy by returning Trump to the White House.
Under one proposal, Vice President Kamala Harris could quickly replace President Biden in office and on the ballot if he voluntarily resigns.
(Ronda Churchill/Associated Press)
The president, known for his stubbornness and misstatements, has insisted he will not give up his candidacy. But the social media fascination with him is increasingly unflattering, portraying a man of blank stares, confusing comments and off-the-cuff phrases, consuming Democrats and shifting the narrative away from Trump just months before the election. The party faces daily conflicts over its loyalty to Biden and calls for it to drop the nomination.
“That’s the most important decision he has to make right now,” Rep. Adam B. Schiff (D-Burbank) said on NBC’s “Meet the Press” on Sunday. “It’s whether this country remains a democracy or whether we drift into some kind of pseudo-dictatorship. It all depends on that.”
“I know people feel urgency. I feel urgency,” Schiff continued. “But I would say to the president, ‘Go slow and take the time you need to make the right decision that’s best for the country.’ And I think he will.”
The 25th Amendment arose out of questions about succession if a president became incapacitated. Those concerns were heightened in the midst of the Cold War by President Eisenhower’s heart attack in 1955 and President Kennedy’s assassination in 1963. The amendment includes language for a president to declare that he is temporarily incapacitated; it was used by President George W. Bush when he underwent colonoscopies that required anesthesia, and by President Reagan before his surgery to remove a cancerous polyp.
The chances of the amendment passing in this case are slim. In 2021, then-House Speaker Nancy Pelosi (D-San Francisco) and Senate Leader Charles E. Schumer (D-N.Y.) said Trump was unfit for office following the Jan. 6, 2021, attack on the Capitol and called for the amendment to be enacted. With Congress, the administration, and the nation in disarray, Trump’s term ended before any meaningful challenge to the 25th Amendment was raised. (The House quickly impeached him, but the Senate acquitted him.)
The least damaging scenario for the Democratic Party would likely be for Biden to voluntarily step down and for Vice President Kamala Harris to assume the presidency before the party’s convention in August. Advocates of such a move suggest it would limit internal party bickering, provide a sense of stability and allow Biden a dignified exit. It would allow Harris to run as the incumbent, choose her own vice president and raise her stature before the convention.
If Biden were to balk at the idea of permanently resigning, Section 3 of the amendment allows him to make a “written declaration” to temporarily discharge his duties to the vice president. Such a move would suggest the president could recover and resume office.
But Biden — ignoring polls and lawmakers and donors including George Clooney and Sen. Peter Welch (D-Vt.) — appears unlikely to step aside, even temporarily, as he continues to insist he is in full control of his powers.
In 2020, then-House Speaker Nancy Pelosi attempted more than once to remove then-President Trump from office using the 25th Amendment.
The most dangerous option would be to use Section 4 of the amendment, under which Harris and most of Biden’s Cabinet could attempt to involuntarily remove him from the White House by informing Senate and House leaders that he is “unable to discharge the powers and duties of his office.”
If that measure were successful, Harris would become acting president. But Biden could refute the claim and argue that “there is no incapacity.” If Harris and the Cabinet or another body, “as provided by Congress by law,” did not budge, the matter would be resolved by a two-thirds vote in the House and Senate.
Such a move would take time, which Democrats lack as November approaches. Congress would have 21 days to investigate and determine whether Biden is fit for office, potentially leading to weeks of turmoil and conflict among Democrats over a nominee. It is also highly unlikely that Harris or a Cabinet member would make such a bold and historic decision against a sitting president who has long commanded the party’s loyalty.
There is no indication that Democrats will allow a crisis to escalate to that level. When the Democratic-controlled House of Representatives urged Vice President Mike Pence to invoke Section 4 against Trump, he wrote in a letter to Pelosi: “I do not believe that such a course of action is in the best interest of our nation or consistent with our Constitution.”
He added: “I urge you and all members of Congress to avoid actions that could further divide and inflame the passions of the moment.”
But Pence faced a president accused of fomenting an insurrection and jeopardizing the constitutional transfer of power. In Biden’s case, Harris faces questions about the president’s mental fitness and cognitive ability at a time when Trump is leading in the polls and a new Washington Post/ABC News/Ipsos poll indicates that 67% of Americans believe Biden should not run for reelection.
“There are a lot of people asking about the 25th Amendment, invoking the 25th Amendment right now, because this is an alarming situation,” House Speaker Mike Johnson (R-La.) recently told reporters. “Our adversaries see the weakness of this White House, as we all do. I take no pleasure in saying that. I think this is a very dangerous situation.”
