Taking the 25th

In rough terms, the Constitution as written in 1787 giveth, while the amendments taketh away. The original Constitution states what the federal government can do. The amendments, starting with the Bill of Rights, specifies things it cannot do.

There are exceptions. Article 1, section 9 forbids bills of attainder and ex post facto laws. The Sixteenth Amendment allows income taxes.

The amendments reflect an evolving sense of what government is for. Beyond the original ten, they responded to pressing needs and gave rise to change almost at once. The Thirteenth Amendment ended slavery upon ratification, the Fourteenth extended citizenship with similar swiftness, the Fifteenth and Nineteenth broadened the franchise, the Sixteenth produced an income tax, the Eighteenth was followed quickly by the Volstead Act. And so on.

A striking exception is the Twenty-fifth Amendment, in particular the part about removing a president from office on grounds of incapacity without the president’s consent. Presidents have consented to temporary transfers of power to vice presidents four times, when they have been sedated for surgery. Ronald Reagan did it once, George W. Bush twice, and Joe Biden once. But the controversial part of the amendment, permitting the removal of a president from office without the president’s consent, has not been invoked in the fifty-seven years since ratification.

Powers are like muscles. When not used they atrophy. In the 1950s Arthur Radford, the chairman of the joint chiefs of staff, warned Dwight Eisenhower that if America’s Cold War nuclear arsenal was never used, such psychological and political barriers would accrete around the arsenal that it never could be used. Radford thought that a bad thing and argued for demonstrative strikes. Eisenhower thought non-use a good thing, and refused.

Most people think non-use of the Twenty-fifth Amendment a good thing. Non-use means presidents haven’t become incapacitated in office. But as with a fire extinguisher that’s never been used, one has to wonder if it still works. There are reasons to be skeptical.

The crucial part of the amendment is section 4: “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.”

Congress hasn’t provided any “other body,” and thus it will fall to the vice president and the cabinet to depose a president. Because the vice president would benefit by becoming acting president, any such move would be criticized as a power grab. Moreover, a majority of the cabinet secretaries would have to go along, which would give the impression of a coup. Vice presidents and cabinet secretaries owe their positions to the president and wouldn’t want to be seen as disloyal.

In certain cases necessity would override loyalty. If a president suffered an obviously debilitating stroke, an affirmative vote to transfer power to the vice president wouldn’t occasion controversy.

But in cases of creeping infirmity, such a vote would come harder. How much harder?

We’re catching a glimpse now. Joe Biden’s recent public appearances have caused most Americans to conclude that he’s too old for his job. Stories leaked from the administration indicate that people close to Biden have knowingly been shielding him from public view. Even in small-group settings he has relied on a teleprompter to keep him from stumbling.

But Biden is stoutly resisting stepping aside from the 2024 race, and few Democrats even outside the administration have been willing to state publicly that he should do so. What are they afraid of?

Members of the administration fear for their jobs. A different president will install a different team. But members of Congress don’t owe their positions to the president. And still they keep quiet.

Part of it is that no one wants to be seen as attacking a frail old guy. Part of it is not wanting to draw blame for electing Donald Trump. If Trump were the one under discussion, fear for retribution from the MAGA crowd would be a deterrent, but Democrats don’t work that way, at least not at the moment.

In any event, if it’s so hard to tell a president he shouldn’t re-up for four more years, how much harder to push a president aside midterm?

The question hasn’t arisen since ratification of the Twenty-fifth. It would have if Reagan’s Alzheimer’s had surfaced clearly a few years before it did.

But the question might very well arise if Biden is reelected. And it might if Trump is elected.

Does the fire extinguisher work? We’ll probably have to wait for the fire to find out.