(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 t