But that’s our fault, not the Constitution’s.
But that’s our fault, not the Constitution’s.
C harles C. W. Cooke couldn’t be more right that it would be catastrophic to reelect a president who lacks the capacity — physically and mentally — to do the job. I was glad this week to find Charlie, with his customary panache, calling out Politico’s Jonathan Martin for his precious concern over President Biden’s inability “to govern and campaign in the manner of previous incumbents,” when it should be undeniable that the former incapacity renders the latter quite beside the point.
We’re going to go through this charade anyway, alas. Strange as it seems, a person who lacks capacity to govern is not thereby disqualified from being president of the United States — at least in the constitutional sense.
If Biden’s condition is as Martin describes (and I don’t doubt that it is), then that is, as Charlie puts it, “disqualifying.” There’s a big difference, though, between disqualifying and disqualified. Biden’s straits (meaning ours) are analogous to the situation in which a president has committed impeachable offenses. This is disqualifying behavior. Yet, the constitutional qualifications for one to serve as president, and to maintain the office once elected to it, do not include refraining from disqualifying behavior. The same is true of incapacity to govern. It triggers not removal but the mere possibility of a removal process. That process is political, and whether it is invoked is a matter of political calculation, not legal obligation.
The qualifications for the presidency are few and undemanding. Stated in Article II, Section 1, they are that a person must be a natural-born citizen who has attained the age of 35 and been resident in the United States for a minimum of 14 years. That’s it.
Section 4 of the 25th Amendment does not state that capacity to govern is a qualification. Rather, it states that a president may be provisionally removed if an assessment of lack of capacity is made by the vice president and either a majority of the cabinet or of a “body” created by Congress (no such body has ever been created, so no one can say with certainty what it would entail).
Does Section 4 mean capacity to govern is an implicit qualification for the presidency? Not really. The amendment is not self-executing. Even if we could all assess that, objectively, Joe Biden lacks capacity, the Constitution would not abide his removal unless the vice president and a majority of the cabinet (or the aforementioned “body”) acted to sideline him.
Even then, moreover, it would only be sidelining, not disqualification. The amendment empowers the president to reclaim his office once sidelined. There is no requirement that he prove he is competent to do so. Such a reclamation would be presumptively valid because the incumbent has been elected — nothing more. The incumbent president’s reclaiming of the office’s powers can be overcome only if (a) the vice president and a majority of the cabinet (or of the aforementioned “body”) dissent, and then (b) a two-thirds’ supermajority of Congress concurs that the president lacks capacity.
Needless to say, the process is arduous — intentionally so. The strong presumption is that an incumbent should finish the presidential term of office (i.e., should hold office until the next election) unless it is unmistakably clear that this is not possible.
The event that led to adoption of the 25th Amendment was the 1963 assassination of President Kennedy. Though he died very shortly after being shot in the head, the shocking episode made the nation and its political class aware of the very real possibility that the president could have lingered indefinitely in a vegetative state. Had that happened, there would have been no doubt that he lacked the physical and mental capacity to govern, yet the Constitution would not have provided for this contingency — it had never been amended to do so despite the infamous Woodrow Wilson episode that Charlie recounts. Hence the 25th Amendment, ratified in 1967.
In a JFK situation, invocation of the amendment’s Section 4 would not be controversial. Similarly, the few invocations of the amendment’s Section 3, which authorizes the president voluntarily to transmit power to the vice president, have not been controversial. They’ve occurred when presidents have had to undergo surgery and thus be sedated for a finite amount of time.
But Biden’s incapacity is not nearly as cut and dried. Americans chose to elect as president a very old man whose lack of vigor for the job was manifest during the 2020 campaign and has been on relentless display ever since. Since his infirmities did not render Biden constitutionally unqualified, he was eligible to be elected and the sovereign — the people — decided to elect him. All that has happened in the ensuing three years is that Biden’s lack of capacity has intensified and, inevitably, become even more apparent. Yet, constitutionally speaking, nothing has changed. The situation is categorically different from what would be the case if a president were incapacitated to the point of being unconscious and near death, or felled by a stroke, or, say, missing due to being kidnapped or taken prisoner by a hostile power.
I often observe in such excruciating situations that, although we like to think of ourselves as a “rule of law” society, we are actually driven by politics when we get down to brass tacks. Whether the 25th Amendment would be invoked against the will of a president who was still sentient and likely to fight the invocation, and what would happen if it were and he did, are questions that would be answered by political calculations, not legal principles.
Biden is failing, sometimes frighteningly so, but he’s not non compos mentis. Could the 25th Amendment be invoked legitimately in that situation? I suppose so. While I don’t believe this is the potential JFK situation that prompted the amendment’s adoption, the amendment’s drafters did not confine its application to such dire circumstances. Instead, Section 4 leaves it to the vice president and the cabinet (or “body”) to determine what disability renders a president unable to discharge the duties of the office. I don’t believe a court could properly second-guess such a determination.
Nevertheless, given Biden’s current condition — he’s not up to the world’s most important and demanding job, but it’s more accurate to portray him as diminished rather than incapacitated — it would make no political sense for Biden’s own chosen vice president and handpicked cabinet to invoke the amendment. If they did, he would contest the invocation. With Democrats in narrow control of the Senate and close to parity in the House, there would be no chance of garnering the required two-thirds’ congressional supermajorities needed to overcome an objection — a powerful reason why the vice president and cabinet would not move against Biden in the first place.
So yes, we’re stuck with an unfit president. But that’s our fault, not the Constitution’s.
The line between true incapacity and arguable unfitness can get blurry. If the 25th Amendment disqualification path were made easier, it could be abused. We need not imagine this; we’ve seen it. During Trump’s presidency, especially after the Capitol riot, there were calls to invoke the 25th Amendment even though (a) Trump quite obviously did not lack capacity (he lacked judgment, a very different thing), and (b) Trump would have fought any invocation. What Trump merited was impeachment, which is the Constitution’s process for removing a president when he’s committed impeachable offenses. The 25th Amendment is not a substitute for impeachment.
Even when a president has committed impeachable offenses, there is little point in impeaching if there is no chance of conviction and removal by the required two-thirds’ Senate supermajority. Realizing the votes for impeachment were not there, congressional Democrats toyed with the idea of invoking the 25th Amendment, rationalizing that Trump’s performance signaled instability — just as Biden now often appears unstable (albeit for different reasons). If the 25th Amendment were made too easy to invoke — if “incapacity” were deduced from frailty or appalling judgment as opposed to a serious mental or physical condition that makes the president, in effect, absent or deranged — it could be wielded as a partisan weapon, just as impeachment has devolved into a partisan weapon.
The Framers made it extraordinarily difficult to remove a president from office in order to ensure that, absent a true catastrophe, presidents would be removed only by elections (or, of course, by virtue of the eight-year term limit). The problem we are currently experiencing is not due to the constitutional system; it owes to the culture and the media-dominated partisan system of popular elections that produce demonstrably unfit presidential candidates.
Under the Constitution as originally adopted, the Electoral College was meant to prevent that from happening. The states would elect esteemed citizens as electors; with the nation’s best interests in mind, they would vote for a suitable president. That system did not last very long. The Electoral College’s vetting function is now long gone. Each elector is essentially bound to hew to the popular vote in their state; the College is now reduced to a vehicle for ensuring that presidents are elected by the states rather than through a national popular vote. Still, the Framers’ adoption of the Electoral College is instructive: They were worried — as we should be worried — about the potential downsides of direct, popular elections for the presidency. At the start of constitutional governance, the expectation was that the mediating influences of political organizations in selecting candidates, and of well-regarded electors in voting for them, would minimize the chance that the presidency’s awesome powers ended up in the hands of the unfit and the demagogic.
Earlier in the GOP 2024 campaign, I objected when Nikki Haley proposed a competency test for the presidency. It would be unconstitutional since, as noted above, the qualifications for the presidency are established by Article I and do not include a demonstration of competency. That said, it would make sense to amend the Constitution to set a maximum-age limit.
Would that exclude some potentially worthy presidential candidates? Sure, but so do the minimum-age and natural-born-citizen requirements (more the latter than the former). Rules are sensible even if their application is unjust in some outlier cases.
Why does it make sense to have a minimum age (again, 35) but not a maximum one? Well, it doesn’t — not today. When the Constitution was ratified in the late 18th century, average life expectancy was between 35 and 40 years of age. People generally did not live to an advanced age at which their mental and physical faculties would be overmatched by a demanding job (and the presidency today is a more taxing job than it was in the early republic, with its more limited central government). Today, average life expectancy is in the mid-to-late 70s, with many living significantly beyond that. It is no longer uncommon to be alive, and even have a good quality of life, beyond an age at which the challenges of the presidency are too daunting.
I would like to see a ceiling in the mid-to-late 60s — now that I’ve entered my own mid sixties, I see the merits of such a ceiling like never before. I’d add this caveat: An incumbent president who exceeded the chosen age (let’s say, 67) during his or her term could seek a second consecutive term — but not a second nonconsecutive term. Absent such a change, though, we have no one but ourselves to blame for choosing candidates who are unfit because of their diminished faculties . . . among other factors that ought to be disqualifying.
Although President Biden is too old and feeble, and Democrats fear he could lose to former president Trump, it would be politically dicey for them to cashier him — especially when the heiress apparent is Vice President Harris, with whom they would run a greater risk of losing to Trump. This is a problem of partisan political miscalculation; while we’re all the worse for it, it’s not a legal problem.
The Constitution could use some age-limit tinkering, but there’s no need for radical surgery on the 25th Amendment or such gimmicks as competency tests. What we really need is a hard look at the dysfunctions of Information Age politics. For at least the third straight time, they appear poised to offer us a pair of major-party presidential candidates each of whose best argument for election is the awfulness of the other.