Democrats could force Biden out under the 25th Amendment — but probably won’t

President Biden has said that only the “Lord Almighty” could convince him not to seek reelection, but a constitutional amendment that Democrats called for invoking against President Trump three years ago provides a path for Biden to leave office or be removed in an extraordinary, if highly unlikely, act of Congress.

The 25th Amendment — a rarely used provision ratified in 1967 — lets an infirm or incapacitated president step aside permanently or temporarily, effectively handing power to the vice president. The amendment’s most politically fraught option allows for the vice president, a Cabinet majority and Congress to remove a president they agree is “unable to discharge” the powers of the office.

None of the choices is enviable for Democrats amid a high-stakes election. They could further unnerve the nation and open a contentious battle for a new candidate. But Biden is under accelerating pressure by Democrats and donors to exit the race after his debate performance and subsequent appearances that have called his age and mental acuity into question. The 81-year-old president, they fear, cannot win reelection — a prospect many Democrats believe will imperil democracy by returning Trump to the White House.

Under one proposal, Vice President Kamala Harris could quickly replace President Biden in office and on the ballot if he voluntarily resigns.

(Ronda Churchill / Associated Press)

The president — known for his stubbornness as well as his misstatements — has been adamant that he is not quitting his candidacy. But social media’s fascination with him is increasingly unflattering, portraying a man of blank stares, confusing asides and wayward sentences — consuming Democrats and shifting the narrative away from Trump just months before the election. The party is conflicted daily over its fealty to Biden and voices calling for him to relinquish the nomination.

“That is the most important decision for him to make right now,” Rep. Adam B. Schiff (D-Burbank) said on NBC’s “Meet the Press” on Sunday. “This is about whether this country remains a democracy, whether we veer off into some kind of pseudo-dictatorship. Everything is riding on this.”

“I know people feel an urgency. I feel an urgency,” Schiff continued. “But I would tell the president, ‘Slow down and take the time to make the right decision here that’s best for the country.’ And I believe he will.”

The 25th Amendment grew out of questions over succession if a president were to become incapacitated. Those concerns were heightened amid the Cold War by President Eisenhower’s heart attack in 1955 and the 1963 assassination President Kennedy. The amendment includes language for a president to declare they are temporarily disabled; it was used by President George W. Bush when he had colonoscopies that required anesthesia and by President Reagan when he had surgery to remove a cancerous polyp.

The prospect of the amendment being pursued in this case is slim. In 2021, then-House Speaker Nancy Pelosi (D-San Francisco) and Senate leader Charles E. Schumer (D-N.Y.) said Trump was unfit for office following the Jan. 6, 2021, attack on the Capitol, and called for enacting the amendment. With Congress, the administration and the nation in disarray, Trump’s term was over before any significant 25th Amendment challenge. (He was quickly impeached by the House but acquitted in the Senate.)

The least damaging scenario for the Democratic Party would probably be for Biden to voluntarily resign from office and for Vice President Kamala Harris to become president before the party’s August convention. Those who advocate this step suggest it would limit intraparty squabbles, provide a sense of stability and leave Biden a dignified exit. It would allow Harris to run as an incumbent, choosing her own vice president and lifting her stature before the convention.

If Biden were to resist the idea of permanently stepping down, Section 3 in the amendment allows him to make a “written declaration” to temporarily discharge his duties to the vice president. Such a move would suggest that the president could recover and resume the office.

But Biden — ignoring the polls and lawmakers and donors including George Clooney and Sen. Peter Welch (D-Vt.) — seems unlikely to even temporarily step aside as he continues to insist he is in full control of his faculties.

Then-House Speaker Nancy Pelosi, speaking in 2020, sought more than once to have then-President Trump removed from office using the 25th Amendment.

The most perilous choice would be using Section 4 of the amendment, in which Harris and a majority of Biden’s Cabinet could seek to involuntarily remove him from the White House by informing Senate and House leaders that he is “unable to discharge the powers and duties of his office.”

If such a move were successful, Harris would become acting president. But Biden could refute the charge and argue that “no inability exists.” If Harris and the Cabinet or another body, “as Congress may by law provide,” did not relent, the matter would be settled by two-thirds votes in the House and Senate.

Such an action would take time, which Democrats are lacking as November ticks closer. Congress would have 21 days to investigate and determine whether Biden was fit for office, potentially leading to weeks of turmoil and conflict among Democrats over a candidate. It is also highly unlikely that Harris or a member of the Cabinet would make such a bold and historic move against a sitting president who has long commanded the loyalty of the party.

There are no indications Democrats would let a crisis rise to that level. When Vice President Mike Pence was urged by a Democratic-controlled House to invoke Section 4 against Trump, he wrote in a letter to Pelosi: “I do not believe that such a course of action is in the best interest of our nation or consistent with our Constitution.”

He added, “I urge you and every member of Congress to avoid actions that would further divide and inflame the passions of the moment.”

But Pence was confronted with a president accused of stoking an insurrection and endangering the constitutional transfer of power. In Biden’s case, Harris is facing questions about the president’s mental fitness and cognitive ability at a time when Trump is leading in the polls and a new Washington Post/ABC News/Ipsos survey indicates that 67% of Americans think Biden should not run for reelection.

“There’s a lot of people asking about the 25th Amendment, invoking the 25th Amendment right now, because this is an alarming situation,” House Speaker Mike Johnson (R-La.) told reporters recently. “Our adversaries see the weakness in this White House, as we all do. I take no pleasure in saying that. I think this is a very dangerous situation.”