Let’s Knock Off the 25th Amendment Talk

We rarely see these opportunities for bipartisan self-improvement, but we’ve got one right now: How about if everyone agrees to knock off the sensationalistic nonsense around the 25th Amendment?

Three and a half years ago, Democrats and others — rightly enraged about Donald Trump’s effort to seize power by force on January 6 — wrongly pointed to the 25th as a source of potential legal redress. (Impeachment and indictment, sure, but the 25th didn’t fit.) Right now, Republicans are having a disingenuous constitutional temper tantrum about Joe Biden’s cognitive ability to finish out his term. Both parties tried to distort the meaning and intent behind the 25th Amendment to achieve expedient political and rhetorical ends. We’d be better served by reserving the provision for when it’s truly needed.

The history is vital here. In 1965, less than two years after the assassination of John F. Kennedy, both the House and Senate passed the 25th Amendment by the constitutionally mandated two-thirds vote. Nearly two years after that, in early 1967, the amendment was ratified when it gained approval from the required three-fourths of states. The overarching concern arose from the horror of the Kennedy assassination. What if, we rightly wondered, Kennedy had been hit at a slightly different trajectory and wound up alive but comatose? What if any president reached a point of incapacitation?

Up until 1967, we had no answer. But the 25th Amendment established a procedure to transfer power away from a president who is “unable to discharge the powers and duties of his office.” The text is key: “unable” to do the job. Not “has declined from his prime and has trouble descending staircases and reading from a teleprompter” (in Biden’s case). Not even “is making dangerously unhinged decisions and trying to subvert the Constitution” (in Trump’s, back in 2021). “Unable.” Incapacitated. To borrow from a famous Supreme Court argument about a very different topic: We’ll know it when we see it.

And this, folks, isn’t “it,” or even close to it. Consider, again, the history. We’ve seen the 25th Amendment invoked four times to transfer power away from the president, each for just a few hours: in 1985 when President Ronald Reagan underwent cancer surgery (though there was uncertainty about whether he had formally invoked the amendment); in 2002 and 2007 when President George W. Bush had routine colonoscopies; and in 2021, when Biden had a colonoscopy. In all these cases, the president was under anesthesia and truly “unable” to perform the job. As in “out cold.”

We can imagine a circumstance where the 25th Amendment kicks in without the president being so obviously and completely incapacitated — a stroke or injury serious enough to substantially impair the person’s ability to function, for example. But we’re nowhere near that point with Biden.

Republican howling about the 25th is based on a palpably false premise: “If Joe Biden is not fit to run for president, he is not fit to serve as president,” as House Speaker Mike Johnson put it. First, that’s just not what Biden said. In his letter announcing that he’d drop out of the race, the president made clear that his decision was based on politics, not competence: “And while it has been my intention to seek reelection, I believe it is in the best interest of my party and the country for me to stand down and to focus solely on fulfilling my duties as president for the remainder of my term.” In other words, I get it; my party is all over me to quit, and I can’t win.

Republican logic also fails on a more basic level. While Biden is plainly in decline, it’s an overreach to claim he is currently “unable” to serve. Earlier this month at the NATO summit, for example, Biden was imperfect but obviously fluent on complex nuances of foreign policy. He’s not in tip-top shape, but he’s nowhere near “unable” to do the job. And even if Biden likely could not finish a second term ending in 2029, it doesn’t follow that he can’t serve out the six months remaining in the current term.

In any event, Republicans are wasting their breath with their cries to sideline Biden under the 25th. Most fundamentally, it’s simply not up to them. The 25th Amendment can be invoked only from inside the presidential administration. There’s an easy way and a hard way to transfer power away from an incapacitated president, and neither can be forced by outsiders.

The easy way is that the president can voluntarily certify in a written declaration to Congress that he is or will be incapacitated, passing temporary power to the vice-president, who then becomes “acting president” — as we saw in the aforementioned scenarios involving Bush, Reagan, and Biden. (You might remember that Vice-President Kamala Harris briefly served as “acting president” during Biden’s medical procedure in 2021, becoming the first woman to exercise presidential power.) When the president recovers sufficiently, he can so certify, and the job is his again.

The hard way also starts inside the incumbent administration. It requires the vice-president and a majority of “the principal officers of the executive department” to certify to Congress that the president is incapacitated. After January 6, certain members of Trump’s Cabinet briefly discussed invoking the 25th. The Biden administration has had no such talks.

(If you’re a fanatic for mind-boggling, high-stakes constitutional ping-pong matches, the process doesn’t necessarily end once power transfers over to the VP. The president can contest his sidelining by certifying to congressional leaders that “no inability exists,” at which point he returns to power. But, it’s still not over. If the vice-president and Congress disagree, they can again certify to Congress that the president remains incapacitated. And if the president disagrees, then he can object and throw it to Congress, which can transfer power to the vice-president by a two-thirds vote of both the Senate and House. I warned you.)

I don’t think Republicans are serious about the 25th Amendment. They must understand, down deep, how it’s really supposed to work. And what would the 25th get them anyway? Harris would become president for the next few months, and Trump would suddenly be running against an incumbent with access to the Oval Office and Air Force One, and the presidential seal behind her. Democrats were operating in better faith back in 2021, but they also plainly understood the stagecraft.

The 25th Amendment is one of our ultimate constitutional safeguards. We hope we never have to use it, brief inpatient medical procedures aside. If we ever do reach a day when the 25th Amendment merits serious consideration, it’ll be a scary moment for the nation. Let’s not trivialize it now by treating it as a cheap political gadget.

This article also appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com