July 22, 2024
By Declan Watson

Introduction

 On July 21, 2024, President Biden announced he will not seek reelection, and has instead directed his energy to fulfilling his duties as president through the remainder of his term.[1] While not historically unprecedented, Biden becomes the first sitting commander in chief not to seek reelection since Lyndon B. Johnson in 1968, and perhaps the first president ever to withdraw due to his inability to continue the office. Given Biden’s apparent decline in mental fitness over the past few months, coupled with troubling reports surrounding his health and competence, his withdrawal elicits questions about whether he can properly fulfill the duties of his office for the rest of his term.[2] The 25th Amendment to the Constitution provides a mechanism for removing a sitting president because of an inability to discharge his duties.

History

Following the assassination of President John F. Kennedy in 1963, Congress ratified the 25th Amendment to clarify the procedure for presidential succession. While Vice President John Tyler did establish precedent of the vice president succeeding the president in cases of death, this Constitutional oversight still left questions unanswered with respect to replacing the vice president, and cases where a president became incapacitated (but not deceased) in office.

By 1963, fueled by international uncertainty during the Cold War, Congress was debating a proposed amendment to clear up succession matters and establish a procedure for the removal of a president who was unable to discharge his duties (either temporarily or permanently). The resulting 25th Amendment dictated that a president unable to perform his duties due to death, removal, resignation, or incapacitation shall be replaced by the vice president.[3] Section 3 of the amendment allows the president to voluntarily transfer powers to his vice president should he be incapacitated (either temporarily or permanently).[4] This occurred unofficially in 1985 when President Reagan underwent surgery for colon cancer, and then officially in 2002, 2007, and 2021 by Presidents George W. Bush and Joe Biden, respectively, while undergoing medical treatment.[5]

Section 4 establishes a procedure for involuntary presidential removal. This section states that if 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” conclude the president cannot discharge his duties, the vice president assumes the powers of the presidency.[6] The president, however, is allowed to challenge this conclusion. If challenged, both chambers of Congress must determine by a two-thirds vote that the president is unfit for office; otherwise, he will resume the powers and duties of his office.

Section 4 of the 25th Amendment has never been used, but the intensifying scrutiny surrounding President Biden’s physical and mental fitness has caused some to call for its use.

Determination of a President’s Fitness for Office

 Successfully invoking Section 4 of the 25th Amendment requires the vice president, a majority of the principal officers of the executive departments, and two-thirds of Congress to agree the president “is unable to discharge the powers and duties of his office.”[7] Ambiguity exists when determining what constitutes an inability to discharge powers: A Yale Law School study concluded that “the framers [of the 25th Amendment] specifically rejected any definition of the term [unable], prioritizing flexibility” to account for the many unforeseen circumstances in which a sitting president may be deemed unfit for office.[8]  The framers recognized that those closest to the president are likely more aware of his full capabilities (or incapabilities) — “the decision to locate in the Executive Branch the initial power to declare the President unable reflects not only … [a compliance] with separation of powers principles, but also that the Vice President and the Principal Officers are the most likely actors to have the information required to make the determination.”[9]

Relevance Today

 President Biden’s decision to step down from his 2024 reelection campaign is a startling and sobering occurrence that places questions surrounding his competence at the forefront of the political sphere. Many media outlets and internet users have commented on the President’s method for dropping out of the race — a signed memorandum via X — and questioned why Biden has not made a public appearance in several days.[10] Others have mentioned Biden’s performance at a June 27th presidential debate that saw him struggle to form coherent sentences. Biden’s own presidential aides have reported that the President is “dependably engaged” from 10 AM to 4 PM, but outside of that time range is “more likely to have verbal miscues and become fatigued.”[11]

A presidential campaign is an arduous undertaking, with a punishing schedule and a considerable investment of energies. But the responsibilities and fortitude needed for an election campaign pale in comparison to those needed for the expansive duties of the United States president. In light of President Biden dropping out from the campaign, Vice President Harris, the various cabinet secretaries, and those close to Biden must now address the difficult question of whether he is fit to continue in office — and be prepared to invoke Section 4 of the 25th Amendment if that answer is no.

[1] Joe Biden (@JoeBiden), X (July 21, 2024, 1:46 PM), https://x.com/JoeBiden/status/1815080881981190320?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet.

[2] Alex Thompson, Two Joe Bidens: The night America saw the other one, Axios, (June 29, 2024), https://www.axios.com/2024/06/29/two-bidens-trump-debate-2024-president.

[3] U.S. Cont. Amend. XXV

[4] U.S. Cont. Amend. XXV, § 3.

[5] Alex Gendler, Can the 25^th amendment be used to replace Biden?, VOA News, (July 11, 2024), https://www.voanews.com/a/can-the-25th-amendment-be-used-to-replace-biden-/7693514.html.

[6] U.S. Cont. Amend. XXV, § 4.

[7] U.S. Const. Amend. XXV, § 4.

[8] Yale Law School, The Twenty-Fifth Amendment to the United States Constitution 6 (2018), https://law.yale.edu/sites/default/files/area/clinic/document/mn082208.yls.const.fnl.pdf.

[9] Id. at 32.

[10] Jeremy Herb et al., Inside Biden’s unprecedented exit from the presidential race, CNN Politics, (July 21, 2024), https://www.cnn.com/2024/07/21/politics/inside-bidens-exit-from-2024-race/index.html.

[11]  Alex Thompson, Two Joe Bidens: The night America saw the other one, Axios, (June 29, 2024), https://www.axios.com/2024/06/29/two-bidens-trump-debate-2024-president.