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Joe Biden and the 25th Amendment

People suggest column topics.  The most prominent this week was a request that I explain what happens if Joe Biden can’t complete his term as president when the Jan. 6, 2021, joint session of Congress counts the electoral votes.  And that is assuming, of course, that the recounts don’t change things.

So, let’s say that President Biden—or any other president—is sworn in but can’t complete his term. What happens?

We addressed this incompletely in our original Constitution.  Article 2 of the Constitution provided that if a president can’t complete his term, the vice president takes over.  If something happens to both of them, Congress decided who acts as president until the next regularly-scheduled presidential election.

That seemed straightforward enough.  But it didn’t answer some important questions.  Questions such as who gets to decide if the president isn’t able to perform the functions of his office?  If the vice president took over after the president died, what do we do about a new vice president?

Also–and this is a surprising fact–before the 25th amendment (more about that in a minute), the vice president had either died in office, resigned, or taken over for the president more than a dozen times.  After President Franklin Roosevelt died in April of 1945 (in nearby Warm Springs, Georgia), we were without a vice president for nearly four years.

All of those unanswered questions made people nervous after the Nov. 22, 1963, assassination of President Kennedy.  Vice-president Lyndon Johnson was sworn in.  But he had already had a heart attack, and he was from a family of men who died relatively young (he died at age 64). The next two people in line for the presidency were 76 and 81 years of age.    So, with the assassination still fresh on our minds, we set about answering some questions.

They came up with the 25th amendment.

For any constitutional amendment to become part of the constitution, three-fourths of the states (38 of 50) had to vote to ratify it. Alabama was the 43rd state to ratify it, doing so on Mar.14, 1967. In that more than 38 states had already voted to ratify, Alabama’s votes were unnecessary.  Georgia never voted to ratify it.

What happens under the 25th amendment?  First, it the president dies or is unable to perform as president, the vice president takes over.  But he can take over in two ways: temporarily or permanently.

If the president dies, it is simple enough—the vice president is sworn in and is the new president.   That settled an unsettled question: whether he was president or just an acting president. 

What happens if the president does not die, but he can no act as president?  That is a good bit tougher. 

The president himself can simply send a letter to Congress that he is unable to act as president.   That happens if a president has to go under anesthesia for surgery.  The vice president becomes “acting president”.  If the president gets better, he gets his job back by sending a letter. Congress can contest whether the president is in good enough shape to take back the office of the presidency.

If the president can’t or won’t certify his own inability to act—for example, he suffers from debilitating dementia–the vice president and a majority of the cabinet certify the president’s inability to the House and the Senate.  The president can dispute this.  If the parties can’t agree, it would take a two-thirds vote of both the House and the Senate to remove the president.

Let’s play this out.  Should President Biden become incapable of being president two years into his term, Vice President Kamala Harris would take over. This is where things get interesting, and if you have any conspiracy theory chops about you, here is where your fireworks go off.

How long could she serve? Under the 22nd amendment, she could serve out President Biden’s final two years. Then she could run and win her own first term.  We all know that American presidents can serve only two terms, so she is done after her first full term, right? No.  She could win a full second term. 

That means that if her cards fall just right (if she takes over with two years left on President Biden’s term), Vice President Kamala Harris could become President Kamala Harris to fulfill the two-year term, she could run and be elected, and she could run and be elected again.  She could be president for the next ten years.

Let’s think that through a little bit more.  If President Biden is removed at about the two-year mark, President Kamala Harris would get to choose her vice president subject only to the approval of the majority of both houses of Congress.

And if both houses of Congress are controlled by the Democrats, is it too far-fetched to imagine a Vice President Hillary Clinton?

Elections matter.