by David Catron
Despite widespread concern about his cognitive health, President Biden won’t be removed from office pursuant to the 25th Amendment. It would require an unlikely display of integrity from his Vice President and Cabinet, plus an implausible level of bipartisanship in Congress. Moreover, the claims of politicians and pundits aside, the involuntary ouster of an unfit president isn’t the purpose of the amendment. Its principal function is to guarantee that the executive branch of the government is at all times led by an official who is conscious and able to communicate. Thus, the first 3 of its 4 sections focus on keeping the presidency continuously occupied.
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4 does provide for the removal of a disabled president who has not voluntarily invoked Section 3. However, it prescribes a politically untenable process doomed to failure if the chief executive is conscious and committed to remaining in office. The invocation of Section 4 doesn’t even remove the President from office. Instead, it provisionally transfers his powers to the Vice President, who becomes “Acting President.” But it also allows the suspended chief executive to reclaim his powers by advising Congress that “no inability exists.” To remove the President, his handpicked Vice President and a majority of his Cabinet must declare political war on him — and battlefield conditions would heavily favor the Commander in Chief.
Whenever 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, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
If the Vice President and a majority of the Cabinet are actually foolish enough to take the politically suicidal step of contradicting the President’s assertion that “no inability exists,” Section 4 requires Congress to step in and resolve the dispute. The subsequent congressional contretemps would be more rancorous than a Senate impeachment trial and less likely to result in removal. The President’s removal must be approved within 21 days by a two-thirds majority in the House of Representatives and a two-thirds majority in the Senate. If either chamber fails to muster the required two-thirds majority, or simply declines to hold a vote on the question within the designated time period, the President’s powers and duties would be restored.
The chances of Biden’s removal via the 25th Amendment would increase slightly if the GOP wins veto-proof majorities in both houses of Congress in November. E. Donald Elliott and John C. Wohlstetter have pointed out here and here that Section 4 contains a clause that allows Congress to sidestep the Cabinet (italics added): “Whenever 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 …” This implies that Congress can create an independent entity empowered to declare Biden incapacitated, but it would inevitably create a wholly unnecessary constitutional crisis if the GOP controls super-majorities in the House and the Senate.
In the unlikely event that the Republicans win such huge majorities during the upcoming midterms, it would be far more practical to remove Biden by impeaching him for his violations of the Constitution and refusal to heed court rulings striking down his illegal executive orders. The latest example of the latter involves the “Remain in Mexico” policy. Biden issued an executive order suspending the Migrant Protection Protocols (MPP), the formal name of the program, on his first day in office. It was formally ended on June 1, 2021. Since then two federal courts have ordered MPP reinstated and the Supreme Court declined to block those rulings. Nonetheless, as reported by Just the News, the Biden administration refuses to comply.
The Biden administration has been repeatedly ordered by courts to continue enforcing the Trump-era Remain in Mexico policy for illegal migrants, but its own records show it has willfully thumbed its nose at those rulings as it waits for a final crack at the Supreme Court. U.S. Customs and Border Protection agency data reviewed by Just the News shows just 199 of the 221,303 illegal aliens stopped by federal agents in March were placed into the Migrant Protection Protocol (MPP), the formal name of the Remain in Mexico policy.
As to violating the Constitution, among the most brazen of Biden’s executive actions was the decision to usurp state landlord-tenet laws by extending the nationwide eviction moratorium first passed by Congress in the 2020 CARES Act. The moratorium was due to expire on July 31, 2021 and the Supreme Court had explicitly warned in Alabama Assn. of Realtors v. HHS that only Congress could legally extend it. Despite their majorities in both houses, the Democrats failed to act. Consequently, the Biden administration concocted an obviously unconstitutional pretext whereby the Centers for Disease Control and Prevention (CDC) could extend it. On August 26, the Supreme Court struck down the CDC moratorium in a 6-3 ruling.
These high-profile offenses, combined with various unconstitutional vaccine and mask mandates, are just a few of many that illustrate Biden’s contempt for the Constitution and the rule of law. His administration consistently ignores the checks and balances the Framers put in place to limit the power of the presidency. Even worse, it is entirely possible that he has been compromised by his family’s multifarious business deals with unfriendly foreign powers. Consequently, Biden’s corruption provides more scope for removal than his cognitive impairment. Impeachment is very hard to get done, of course, but there is no real chance that Biden will be ejected via the 25th Amendment. It’s time to abandon that fantasy.
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David Catron is a recovering health care consultant and frequent contributor to The American Spectator. You can follow him on Twitter at @Catronicus.
