(This article first appeared in the American Spectator: https://spectator.org/25th-amendment-first-ever-involuntary-departure/)
By: John C. Wohlstetter, Senior Fellow
Yond Cassius has a lean and hungry look
He thinks too much; such men are dangerous.
— William Shakespeare, Julius Caesar, Act I, scene 2
The earlier installments in my series on the 25th Amendment were: Part I, historical antecedents; Part II, 25th Amendment genesis; and Part III, 25th Amendment implementation since 1967. Part IV covers possible first-ever use of the 25th Amendment’s involuntary presidential disability provision.
The Crisis of 2021: Systemic Crisis, Hyper-Partisan Division
We face an emerging — extremely grave — constitutional crisis with the new administration. The America that saw ratification of the 25th Amendment to prepare for instances of presidential succession and disability, and navigated its way through the acute crises of 1973-1974, was despite large partisan divisions sufficiently united to survive serial crises intact. There is ample reason to believe we will not be so lucky this time if an instance of presidential disability emerges.
The common thread running through all post-25th Amendment events has been the avoidance of deep systemic crises. The broad bipartisan consensus underlying the passage and ratification of the 25th laid a firm foundation for future orderly transitions. Such a consensus created lopsided votes in Congress, and permitted speedy action in a legislature where such is the rare exception; conversely, significant opposition precludes it.
The path taken with the 25th Amendment stands as an exemplar of orderly process and widespread acceptance. On January 28, 1965, a mere eight days after being sworn in for his full presidential term, Johnson sent a special message to Congress requesting prompt action. In July 1965, the final version was sent to the states for ratification. The three-fourths benchmark — 38 states out of 50 — needed to satisfy Article V’s requirement for amendments reported out of Congress was reached February 10, 1967. Thus, it took 25 months to reach ratification from initial proposal in Congress.
Sen. Birch Bayh told his fellow senators during the debate on the 25th Amendment: “I have more faith in the Congress acting in an emergency in the white heat of publicity, with the American people looking on. The last thing Congress would dare to do would be to become involved in a purely political move.”
Which brings us to five scenarios of what could occur if President Joe Biden becomes too disabled to act as president. The first three are based on a historical antecedent, though several end differently. The fourth is a fictive case as presented in a realistic political thriller that raises the manifold problems that will likely attend a case of involuntary disability per the 25th Amendment’s Section 4. The final scenario departs sharply from historical antecedents of vice-presidential conduct. To be clear, all five are possible permutations, but none are intended as predictions. The scenarios are intended to paint a picture of what might come to pass, and to aid conceptually in looking at different types of disability crises.
What scenarios appear to fall within the range of reasonable possibility? We begin with an assessment of the president’s first six and a half months.
Current Status: Palace Intrigues
High-level machinations are inherently hard to judge from outside. Much of what appears in the press are orchestrated leaks — at times, competitive leaks by rival factions. But according to a recent interview (2:30) with Rep. Dr. Ronny Jackson (R-TX), the former presidential physician to Presidents Obama and Trump, Biden exhibits physical frailty and mental cognitive decline, and clearly appears not able to meet the immense daily demands of the Oval Office. Jackson wants Biden to take the same 30-question cognitive test that hostile reporters badgered Trump into taking; Trump aced it with a perfect score. Does anyone truly believe Biden could match this? The president is seen far less frequently in public than any president in living memory, and rarely takes spontaneous questions. He held a June 16 one-on-one summit with Vladimir Putin, to mixed reviews, and travels less than previous presidents. Put simply, after running the country’s first ever mostly basement campaign in modern times, he now runs the country’s first ever mostly basement presidency in modern times.
There is, however, one large difference between Biden’s health status and pre-20th century crises. Medical intervention then was often more likely to do harm than good. Recall that the father of our country was serially bled to death in 1799 by physicians trying — via four such bleedings, draining a total of 32 fluid oz. (two pints) in two days — to cure the bacterial infection he contracted working hours in the open field during a steady, soaking rain.
Scenario One — Antecedent: Dwight Eisenhower 1956
Weeks after his landslide reelection, Ike had a small stroke that left him temporarily mute. This came shortly after two major international crises had ended. First came the Hungarian Revolution, brutally suppressed by the Soviet tanks and artillery. In the midst of that came the Suez Crisis. It started when Britain, France, and Israel seized the canal to prevent Egyptian president Gamal Abdel Nasser from closing it to international shipping; it ended when Ike ordered the three allies to withdraw, warning them that he would not back them up against a Soviet threat to use nuclear weapons to settle matters. Two days into this last health event of his presidency, Ike told his inner circle: “If I cannot attend to my duties, I am simply going to give up this job. Now, that is all there is to it.” Vice President Nixon was warned he might become president within 24 hours, but Ike quickly recovered.
SCENARIO ONE: Biden’s physical and/or mental condition diminishes to the point where he himself realizes that much as he wishes to remain president, he can no longer deceive himself. He steps aside voluntarily, and Vice President Kamala Harris ascends to the Oval Office.
Scenario Two — Antecedent: James Garfield 1881
The first protracted presidential crisis came with the shooting of James Garfield by a deranged office-seeker on July 2, 1881. He suffered a flesh wound in one arm and a serious wound in his back. Surgeons were initially optimistic that the president would survive. But the bullet had caused internal hemorrhaging, which in turn caused fatal blood poisoning. This proved untreatable with late-19th century medicine. Garfield lingered for 80 days, dying September 19, having carried out only one minor official act. Chester Arthur, who had never held office higher than New York City port commissioner, became president.
SCENARIO TWO: Biden is taken too ill to be able to discharge his obligations. But his illness may prove treatable with modern medicine. For several months he performs almost no presidential tasks — even fewer than likely he is doing now. He recovers and resumes his current level.
Scenario Three — Antecedent: Woodrow Wilson 1919-1921
On October 2, 1919, Wilson suffered a disabling stroke that left him partially paralyzed, unable for months to do anything of consequence, and after that only did minimal work. The country was effectively run by the first lady, his White House personal secretary, and his personal physician. Cabinet meetings were for months conducted by the secretary of state. Wilson’s two foreign policy goals, ratification of the Versailles Treaty and joining the nascent League of Nations, were kaput. In all, Wilson was gravely disabled for the final 17 months of his term.
SCENARIO THREE: Biden suffers a massive stroke, and is unable to discharge any required task at a meaningful level. Nor is there any chance he can meaningfully recover. But instead of using Section 3 of the 25th Amendment for a declaration of voluntary disability, or resigning outright, Biden hangs on. First Lady Jill Biden, and certain staffers judged loyal by Jill and those she trusts, take over. We may be confident that Kamala will not be part of this group.
Scenario Four — Antecedent: Forcible Removal
In 1968, the great political-thriller novelist Fletcher Knebel published Night at Camp David. In it, the president goes insane and a struggle ensues behind the scenes. The president invites the freshman senator he wants to replace his vice president on his second-term ticket to spend a weekend night at Camp David. The senator observes the president behaving in what lay observers generally consider classic paranoia: a persecution complex (everyone is out to get me) coupled with delusions of grandeur (a new world union of nations, with me as its chosen ruler). The senator compares notes with several inside players he knows, and gets moderately positive responses, tempered by skepticism.
Yet doctors apply an even more skeptical and nuanced calculus. The young senator fails to convince enough major players — senior members of Congress, and the Cabinet; plus the sitting vice president, an associate Supreme Court justice, and the president’s personal physician. He finds his own sanity questioned instead. The president learns that the cabal is meeting in a Georgetown townhouse, and interrupts deliberations by surprise. He puts on a bravura performance, confessing to flashes of temper, but denies that they collectively equate to insanity.
The game appears over. But at the last moment, before going on television to denounce the cabal, the president learns that his pre-existing heart murmur has become heart tremors. He resigns, and the caretaker sitting vice president becomes president for the final months. The young senator takes himself out of the running for the nomination. The fall election looms with no incumbent on the presidential ballot.
SCENARIO FOUR: President Biden’s mental decline steepens, to the point where it is at least debatable whether he understands what his administration is doing. Those surrounding him are divided. The Biden family wants to stay in power, in part to protect members from facing various felony charges. Top advisers see the ship sinking, as the administration drifts. They decide to press the president’s family to persuade Biden to resign. They try, but the president refuses. The vice president and a simple majority of the Cabinet declare that the president is unable to discharge the “powers and duties” of his office. The House and Senate convene; each musters the two-thirds supermajority required for a finding of involuntary disability, so as to permanently disqualify the president. In a first ever use of the “challenge” provisions of Section 4, the president is removed. Vice President Harris ascends to the Oval Office.
Scenario Five: Successor Coup
There is no historical antecedent. As earlier installments in my 25th Amendment series recount, no vice president has even attempted any kind of palace coup. All have taken great pains not to even look like a usurper. Indeed, that history of vice-presidential reluctance no doubt factored into myriad optimistic predictions by senior players involved in adoption of the 25th Amendment. With near unanimity they assumed that all parties and persons involved would in a grave succession crisis act with restraint and probity.
But Kamala Harris exudes ambition. Her performance to date gets a sharply negative rating from voters — two recent polls show her as the most disliked vice president in modern history. This is despite her status as an identity politics trifecta: African-American/Asian parents, plus female. The president, for his part, is slipping badly with independent voters, a group essential to his re-election. Serial flip-flops on pandemic masking have badly hurt the administration’s credibility. Recently, several top female Democratic strategists who formerly held senior positions in the Clinton and Obama administrations got together to brainstorm how Harris might improve her dismal standing with the media.
In a June 8 interview (6:29) with NBC anchor Lester Holt, Harris acknowledged the violence and peril migrants from Central America endure; Harris’ immigration policy goal is to find the “root causes” of migrant flow. Pressed by Holt as to why she had not visited the border, Harris answered: “We’ve been to the border.” When Holt responded that she, personally, had not been to the border, a laughing Harris deflected Holt’s direct, factual question by saying, “And I haven’t been to Europe, either.” Her tendency towards giving condescending, flippant answers to serious questions she dislikes contributes to her negative poll numbers.
SCENARIO FIVE: The first family and presidential advisers stick together as the president’s mental decline accelerates. They aim to accomplish what Woodrow Wilson’s triumvirate did: manage the situation to the end of this term, while not running for re-election. Vice President Harris, seeing her rotten poll numbers, decides that the only way she can become president is to take over mid-term, allowing her to run as an incumbent. She and her key staffers leak copiously to friendly Beltway and social media outlets as to the president’s steepening mental decline. The press, fearing that the Democrats will lose both houses in a mid-term landslide, forces action by boosting public awareness, and thus public sentiment shifts in favor of replacing Biden with Harris. Democratic leaders quietly tell the Biden family that if they do not leave voluntarily, the family will face multiple state prosecutions — which are not covered by presidential pardons. The family persuades a greatly weakened Biden to resign. Democrats run in 2022 without being saddled with Biden’s failures; Harris gets a year-long media honeymoon, running with the vice president of her choice, who is given the same love fest.
Then and Now: Two Vastly Different Americas
Knebel’s scenario in Night at Camp David appears to have been based in part on public remarks Ike made at a May 25, 1964 conference on presidential disability attended by senior members of Congress and leading lights in the legal community. Ike was upbeat as to how the problem might be dealt with:
There is a quarrel about this, that the president being a little bit wacky, thinks he can take back the job but that the vice-president and, let us say, the majority of the Cabinet thinks that he is not capable under the circumstances — and I think the chance is remote that this would occur — regardless of the method determined by the Congress by which this question would be resolved, it is no longer an emergency.
But in a March 3, 1964 letter to Sen. Bayh, chief senatorial sponsor of the 25th Amendment, the former president had said this:
I should ask that the chance that such a dispute might occur for the simple reason that we must assume that in these serious affairs the individuals concerned would be men of good will, concerned with the welfare of the Nation as a whole.…
Do we now have such people on both sides of today’s debates, who can be trusted to act by putting the nation first? We have a Speaker of the House who stacks the January 6 Committee to ensure a partisan result; she is backed by a mainstream media brigade that presents what was a riot as if it were an orchestrated insurrection.
In 1973, then-Sen. Joseph Biden said of Ford’s selection: “The one thing I want to impress on the American people is that we do not think of this is business as usual, that the man we are going to confirm as the vice president of the United States may very well be the next president within the next three years.”
When James Madison became ill for several months in 1813, the prospect that his vice president, 69-year-old Elbridge Gerry, might become president if Madison died alarmed a French minister. He expressed concern that it “would be a veritable national calamity” if Gerry, whom he called “a respectable old man, but weak and worn out,” became president. He said, “All good Americans pray for the recovery of Mr. Madison.”
So, today, do millions of Americans pray for Mr. Biden — despite his being the one who is elderly and manifestly in some measure infirm. A diminished Biden, for many, is far preferable to a healthy, but woefully inadequate Kamala Harris. Such is the dismal state of our republic.
No outsider can truly know in detail the medical condition and prognosis of the president. He cannot be forced to undergo any medical examination, let alone any course of medical treatment. The press has pointedly, with very rare exceptions, avoided asking about the president’s condition. The vast majority of observers are thus limited to the equivalent of searching inside a pitch-dark warehouse with a flashlight emitting a low-wattage flickering beam.
Proponents of the 25th Amendment answered skeptics by stating that the stability of the republic required its adoption. They conceded that civic virtue was required for presidential succession to work. Going all the way back to the Framers of 1787, leaders have understood this. Hence Benjamin Franklin’s famous quip when asked what the Grand Convention had produced by spending the Philadelphia summer behind closed doors: “A republic, if you can keep it.”
Will we keep it? We should remember our 16th president’s words from 1862:
We shall nobly save, or meanly lose, the last, best hope of Earth.
John Wohlstetter, a senior fellow at the Gold Institute for International Strategy is author of Sleepwalking with the Bomb (Discovery Institute Press, 2d. ed. 2014).