It’s Time To Invoke The 25th Amendment

The Democrats’ public struggle session over what to do with the problem of Joe Biden must end. They know, we know, and, most terrifyingly, America’s enemies know that our commander-in-chief is mentally incompetent. As such, the answer is clear, and the Constitution provides it: Joe Biden must be removed from office and the vice president sworn in as president.

The only (proper) question for Biden and his party is whether the removal will be voluntary, under Section 3 of the 25th Amendment, or forced, under Section 4. Will Biden transmit “his written declaration that he is unable to discharge the powers and duties of his office” to Congress? Or will the vice president and a majority of the Cabinet inform Congress of President Biden’s incapacity and remove him from office?

A day or two to decide is reasonable. A week stretches the bounds. But we are now at the point where the inaction by Vice President Kamala Harris and Biden’s Cabinet constitutes a violation of their oath of office. They solemnly swore they would “bear true faith and allegiance” to the Constitution and that they would “faithfully discharge the duties of the office.” That oath mandates they provide Congress “their written declaration that the President is unable to discharge the powers and duties of his office…”

There is no wiggle room. No “wait and see” if the president can convince the public he is fit for office, whether by choreographed appearances or edited prime-time interviews. Neither spin nor conspiracy theories can alter what the world saw during the debate: Biden’s mental incapacity.

Whether caused by age, dementia, or Alzheimer’s matters not. The president of the United States cannot discharge his duties if he lacks lucidity for even a fraction of the day. The commander-in-chief must be able to command the executive branch 24-7.

Any counter is political and constitutionally unsound.

Yes, Biden has a horde of helpers who can — and likely have — made decisions on his behalf. But our Constitution established a “unitary executive,” with the president individually and solely vested with the authority to command the executive branch. And the Constitution dictates what happens when that individual, here Biden, is unable to discharge his duties.

Removing Biden from office is politically fraught, however, because he is also the Democrat’s presidential candidate. In fact, some Democrats seem concerned only about removing Biden from the ballot and not the presidency, oblivious to the paradox they are promoting: that Joe Biden isn’t competent to run for reelection but is competent to run the country.

With only four months until the general election, Democrats have no good option — but they do have one constitutional one. Ironically, the constitutional option is likely also the best choice, politically speaking. 

By promptly removing Biden from office, Democrats can enter their convention with a sitting president, Kamala Harris, to replace Biden on the ballot. They can then spend the next month and a half focused on a new candidate instead of debating whether to replace Biden at the convention — while attempting to avoid another public display of incapacity.

Replacing Biden at the convention would also prove devastating to Democrats’ “saving Democracy” cry because it would disregard the party’s primary voters without justification. Democrats could also work to quietly quash any in-fighting over Harris’ selection during that time, while rallying party faithful to the ticket by promising an attractive vice-presidential candidate.

This approach would also be the worst option for Republicans. While a President Harris might seem a less formidable opponent, now that the populace knows Biden is incompetent, he would be the easiest Democrat to defeat come November, mentally and policy-wise. That might prompt some congressional Republicans to remain silent, rather than demand Vice President Harris and Biden’s Cabinet deliver a declaration of incapacity. But they too took an oath to “bear true faith and allegiance” to the Constitution and “faithfully discharge the duties of the office.”

So while the schadenfreude Republicans are currently enjoying is understandable — given that just two weeks ago the press accused those highlighting Joe Biden’s incompetence as peddling a “cheap fake” — our country and Constitution must come first.

Of course, that doesn’t mean Republicans would be without grounds to attack a presidential candidate Harris. Beyond her bungling of everything she touched as vice president, Harris would be forced to defend her delay in seeking Biden’s removal from office — for while the public at large only recently saw Biden’s incompetence, The Federalist and others have been highlighting it for years. And as Biden’s vice president, Harris clearly knew he lacked the capacity to serve as commander-in-chief long ago. Yet she, like the other members of the administration, only acted once they realized they could no longer hide the truth from voters.

Harris’ continued defense of Biden will only cement this reality in voters’ minds, as will her ongoing inaction as she waits out Biden and his family’s efforts to rehabilitate the president’s image. The Democrat Party will likewise find itself tarred for years by its efforts to prop up Joe Biden.

That doesn’t mean they won’t win the 2024 presidential election though. And Republicans would be foolish to think the Democrat’s current implosion will prevent party loyalists and activists from getting ballots into the box — even if they don’t yet know the candidate for whom they will be collecting votes.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.