The 25th amendment isn’t for Joe Biden

Joe Biden during the first debate with Donald Trump in Atlanta. Picture: AFP

The omerta has broken, and worrying anecdotes about Joe Biden’s age are now common. He used a teleprompter while speaking to about 30 donors in a living room. Prep materials for an event include photos of the hallway to the stage, with an instruction in large font: “Walk to podium.” Voters already think Biden is too old to be president for another four years.

But is he too old to make it for another six months, until the end of this term? That’s what Republicans will be asking as they try to press their advantage. Talk is circulating again about using the 25th Amendment to remove the President posthaste, on the theory that his incapacity is a danger to the country. The argument is Biden blamed his bad debate performance on “a bad night”, but next time it could be during a geopolitical crisis.

The risk isn’t zero if Biden stays in power, but the alternatives are hardly compelling. The 25th Amendment isn’t designed for removing a leader who doesn’t think himself incapacitated. Deeming a president unable to perform his duties requires a declaration to that effect from the vice-president and a majority of the cabinet, all of whom have some loyalty to the man in the Oval Office. Is Transportation Secretary Pete Buttigieg ready to throw Biden under the electric bus?

If a removal effort succeeds, the vice-president then becomes acting president. Kamala Harris would get temporary power to give orders as commander in chief, without the title or mandate. Republicans should close their eyes and imagine how Acting President Harris might handle, say, a Chinese invasion of Taiwan. Does that raise their confidence?

The 25th Amendment also permits a sidelined president to challenge removal. Sustaining disqualification ultimately takes a two-thirds vote by the House of Representatives and Senate. That’s a higher bar than what’s required for impeachment and conviction, since the house can pass impeachment articles with a mere majority. To regain the presidency, Biden would need to muster only 34 votes in a Senate that includes people older than him and served with him for decades.

All of this is by design. The 25th Amendment was ratified in 1967, and its framers were not trying to create a mechanism for contesting presidential power. They were seeking, amid the aftermath of the JFK assassination, to clarify a constitutional bypass for a president who might become comatose or otherwise incapacitated. With that context, what’s more of a danger to the republic: Biden carrying on with his advisers as usual, shaky as he looks some days, until the next presidential inauguration on January 20, 2025? Or an unprecedented constitutional power struggle among Biden, Harris, a divided cabinet and a brawling congress? Through the eyes of America’s adversaries, the power vacuum might look like the more inviting opportunity.

Biden told a group of Democrat governors that he needs to sleep more and work less. He can do both by ending his campaign, with its travel and fundraising. He so far is defiant in refusing to consider this, but more Democrats by the day are making the case that Biden should bow out in their party’s, and the country’s, best interests. Trying to invoke the 25th Amendment could reinforce Biden’s stubborn streak and cause him to dig in further.

The 25th Amendment is political catnip, and chatter about using it on Donald Trump arose in 2017 and in 2021. Republicans talking about it now are enjoying the payback. But it was a daydream and a distraction then for the same reasons it’s impractical today.

Voters are correct that Biden is too old to serve until January 20, 2029, when he’d be age 86. The best path is for Democrats to persuade Biden to forgo re-election, which would let him focus on governing through the end of his term. If Biden won’t listen, voters will have their say in November.