The 25th Amendment and a disabled president

OPINION:

Special counsel Robert Hur’s report on President Biden’s “willful” retention and disclosure of classified documents details the memory lapses of “an elderly man” that occurred when the commander in chief was interviewed. Coming atop Mr. Biden’s most recent gaffes, including his citing conversations in 2021 with long-dead leaders of Germany and France, the report has raised serious concerns over the president’s mental faculties.

Indeed, many are asking what, if anything, can be done about this potential problem, which could endanger the safety and well-being of the entire nation?

As the Heritage Guide to the Constitution explains, the original presidential succession clause contained in Article 2, Section 1 of the Constitution was ambiguous. It said that “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties” of his office, those duties would “devolve” on the vice president.

Section 1, however, did not define exactly what this “inability” was or who made that determination. And did the vice president who succeeded a president become president for the rest of the presidential term, or was he merely the “acting president”?

When President Woodrow Wilson suffered a debilitating stroke in 1919, there was no procedure in place for handling his incapacity. His wife, Edith Wilson, took immediate steps to hide Wilson’s true condition from the public, most of the president’s own staff, and “the Cabinet and Congress.” It has long been rumored that she secretly carried out his duties behind the scenes.

The question now is whether history is repeating itself.

Ratified in 1967, the 25th Amendment was passed to establish procedures to deal with a president’s removal from office, including through death, resignation or impeachment, as well as due to disability, whether physical or mental, such as when a president undergoes surgery, is kidnapped, or becomes mentally infirm, as happened to Wilson.

The 25th Amendment also provides that if the office of the vice president becomes vacant, the president nominates a new vice president who must be confirmed by both the House and Senate. This procedure was used when Vice President Spiro Agnew resigned in 1973 and was replaced by Gerald Ford, and was used again when Ford nominated Nelson Rockefeller to be his vice president after President Richard Nixon resigned.

Section 3 provides for the vice president to take over as “Acting President” if the president on his own sends a “written declaration” to the Senate and the House that “he is unable to discharge the powers and duties of his office.” The vice president remains the “acting president” until the president sends notice to the Senate and House that he can once again assume his role as president.

This provision has been invoked several times, including by Presidents Ronald Reagan and George W. Bush while undergoing medical procedures that required general anesthesia.

Even if one assumes that there is a substantive medical issue with Mr. Biden, it is clear that he has no intention of voluntarily ceding control to Vice President Kamala Harris.

Section 4 is the provision of the 25th Amendment that applies to a president who is suffering from a mental disability but who is unwilling or unable to give up control of the executive branch. It provides that when the “Vice President and a majority of either the principal officers of the executive departments or such other body as Congress may by law provide,” they may send written notice to the Senate and the House that the president is “unable” to do his job, and the vice president becomes acting president.

The president can reclaim the duties of his office if he sends written notice that he is capable of being president, unless the group that had removed him then disagrees within four days.

If that conflict arises, Congress must assemble within 48 hours and has 21 days to decide who is right. It takes a two-thirds vote of both houses of Congress to override the president’s assertion that he can resume his office.

Some have suggested that it is time to invoke the 25th Amendment. It is, of course, exceedingly unlikely for a host of political reasons that Ms. Harris and a majority of Mr. Biden’s Cabinet would send Congress that notification.

We are, however, living in dangerous times where we need a president who has the ability to competently and effectively protect the nation and handle the duties of what many believe is one of the hardest jobs in the world.

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Hans von Spakovsky is a senior legal fellow and manager of the Election Law Reform Initiative at The Heritage Foundation and a former member of the Federal Election Commission.