The Case for Using the Twenty-fifth Amendment on Biden
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Jeannie Sue Gerson, a writer for the New Yorker, argues that President Biden's cabinet should use the 25th Amendment to remove him from office due to concerns about his cognitive health. She believes that the 25th Amendment was designed for situations where a president may not recognize their own impairment, and that Biden's performance at the first presidential debate of the 2024 election raised serious questions about his fitness for office. Gerson acknowledges that this is a drastic step, but she believes that it is necessary to ensure the stability of the country and to give Vice President Kamala Harris a chance to build credibility as an incumbent. She also points out that the 25th Amendment has been discussed in the past, particularly during the Trump administration, and that it is a legitimate tool for addressing concerns about a president's ability to perform their duties. Gerson believes that the 25th Amendment is not a partisan tool, but rather a constitutional safeguard that should be used when necessary. She also discusses the recent Supreme Court decision on presidential immunity, arguing that it is not as alarming as some legal thinkers believe. She believes that the Constitution places the responsibility on the American public to elect leaders they can trust, and that using criminal law as a backstop is not always an effective strategy. Gerson concludes by saying that she wishes the public had not elected presidents who make conversations about the 25th Amendment even vaguely plausible, but that these constitutional provisions are there for extreme situations.
Outlines
The 25th Amendment and President Biden's Cognitive Health
This Chapter discusses the 25th Amendment and its potential application to President Biden's cognitive health. Jeannie Sue Gerson, a writer for the New Yorker, argues that Biden's performance at the first presidential debate of the 2024 election raised serious questions about his fitness for office. She believes that the 25th Amendment was designed for situations where a president may not recognize their own impairment, and that Biden's cabinet should use it to remove him from office. Gerson acknowledges that this is a drastic step, but she believes that it is necessary to ensure the stability of the country and to give Vice President Kamala Harris a chance to build credibility as an incumbent.
The Advantages and Disadvantages of Incumbency
This Chapter explores the advantages and disadvantages of incumbency, particularly in the context of Vice President Kamala Harris potentially becoming president if Biden were to resign. Gerson acknowledges that incumbents are often held responsible for any negative events that occur during their time in office, but she also points out that Biden's administration has achieved significant accomplishments, such as avoiding a recession and passing infrastructure projects. She believes that the positive aspects of Biden's presidency could be transferred to Harris, giving her an advantage in the election.
The Functioning of Government Without a Mentally Fit President
This Chapter examines the question of how much an administration can function without a mentally fit president. Gerson uses the example of President Reagan, who may have had Alzheimer's while in office, to illustrate that the government can continue to operate even with a president who is not fully capable. She acknowledges that many important people in government have staff who help them with their work, and that the executive office could likely continue to function even if Biden were to be completely incapacitated. However, she argues that this is not an acceptable way for our democracy to work, and that the 25th Amendment is there to address such situations.
The 25th Amendment and Donald Trump
This Chapter shifts the conversation to Donald Trump and the potential application of the 25th Amendment to him. Gerson discusses how she wrote about the idea of using the 25th Amendment against Trump five different times for the New Yorker during his presidency. She acknowledges that Trump has also had his share of slip-ups and memory issues, but she believes that the 25th Amendment is not a tool that can be used to remove a candidate from office. She believes that if Trump were to win the election and become president, the conversation about the 25th Amendment would likely resurface.
Presidential Immunity and the Supreme Court
This Chapter discusses the recent Supreme Court decision on presidential immunity, which Gerson believes is not as alarming as some legal thinkers believe. She argues that the Constitution places the responsibility on the American public to elect leaders they can trust, and that using criminal law as a backstop is not always an effective strategy. She believes that the Supreme Court's decision is a reflection of the fact that the American public ultimately bears the responsibility for electing leaders they can trust.
The Public's Response to Gerson's Argument
This Chapter explores the public's response to Gerson's argument that Biden should resign. She describes receiving a lot of angry and profane emails from Biden Democrats, which she believes is a sign of the anxiety and nervousness surrounding the current political climate. She also discusses how the situation is relatable to many voters who have experienced similar situations with aging parents in their own families.
Keywords
25th Amendment
The 25th Amendment to the United States Constitution deals with presidential succession, disability, and inability to discharge the powers and duties of the office. It was ratified in 1967 and has been invoked several times, primarily for temporary transfers of power during presidential illnesses or surgeries. The amendment's Section 4, which allows for the removal of a president deemed unable to perform their duties, has never been invoked. This section is the focus of the podcast episode, as it is being discussed in relation to President Biden's cognitive health.
Cognitive Impairment
Cognitive impairment refers to a decline in mental abilities, such as memory, thinking, and judgment. It can be caused by a variety of factors, including aging, disease, and injury. In the context of the podcast episode, cognitive impairment is being discussed in relation to President Biden's fitness for office. There are concerns that his age and potential health issues may be affecting his ability to perform his duties as president.
Kamala Harris
Kamala Harris is the 49th and current Vice President of the United States. She is the first woman, the first African American, and the first Asian American to hold the office. Harris is a former senator from California and a former attorney general of the state. She is a member of the Democratic Party. In the context of the podcast episode, Harris is discussed as a potential successor to President Biden if he were to resign or be removed from office. The 25th Amendment would make her the acting president if Biden were to step aside.
Presidential Immunity
Presidential immunity is a legal doctrine that protects the president from being sued or prosecuted for actions taken while in office. The Supreme Court recently ruled that presidents have criminal immunity for official conduct, which has raised concerns about the potential for abuse of power. The ruling divides presidential official acts into two categories: those that are exclusively within the president's constitutional power and those that are shared with Congress. The court ruled that presidents have absolute immunity for actions taken in areas where they have exclusive power, and at least presumptive immunity for actions taken in areas where they share power with Congress. This ruling has been criticized by some legal thinkers, who argue that it could allow presidents to commit crimes with impunity.
Impeachment
Impeachment is a process by which a legislative body formally accuses a public official of wrongdoing. In the United States, the House of Representatives has the sole power to impeach the president, and the Senate has the sole power to try all impeachments. Impeachment is a political process, not a criminal one, and it does not necessarily result in the removal of the official from office. The podcast episode discusses the potential for the 25th Amendment to become a partisan tool, similar to impeachment, where it could be used to remove presidents for political reasons rather than for legitimate concerns about their fitness for office.
Q&A
What is the 25th Amendment and how could it be used to remove President Biden from office?
The 25th Amendment to the US Constitution deals with presidential succession, disability, and inability to discharge the powers and duties of the office. Its Section 4 allows for the removal of a president deemed unable to perform their duties. This could happen if the Vice President and a majority of the Cabinet declare that the president is unable to discharge the powers and duties of the office. If the president objects, Congress would then have to vote by a two-thirds majority to remove them.
What are the arguments for and against using the 25th Amendment to remove President Biden?
Arguments for using the 25th Amendment include concerns about Biden's cognitive health and his ability to perform his duties as president. Supporters argue that it is necessary to ensure the stability of the country and to give Vice President Kamala Harris a chance to build credibility as an incumbent. Arguments against using the 25th Amendment include the fact that it is a drastic step and that it could set a dangerous precedent. Critics also argue that it is a partisan tool that could be used to remove presidents for political reasons rather than for legitimate concerns about their fitness for office.
How does the recent Supreme Court decision on presidential immunity affect the conversation about the 25th Amendment?
The Supreme Court's decision on presidential immunity has raised concerns about the potential for abuse of power. The ruling gives presidents broad immunity from prosecution for official conduct, which could make it more difficult to hold them accountable for wrongdoing. This could make the 25th Amendment a more attractive option for removing a president who is deemed unfit for office, as it would not be subject to the same legal limitations as impeachment or criminal prosecution.
What is the public's response to the idea of using the 25th Amendment to remove President Biden?
The public's response to the idea of using the 25th Amendment to remove President Biden is mixed. Some people support the idea, citing concerns about Biden's cognitive health and his ability to perform his duties as president. Others oppose the idea, arguing that it is a drastic step that could set a dangerous precedent. The conversation is also complicated by the fact that many people are in denial about Biden's age and potential health issues, and they are reluctant to accept the idea that he may not be able to continue serving as president.
What are the potential consequences of using the 25th Amendment to remove President Biden?
The potential consequences of using the 25th Amendment to remove President Biden are significant. It could set a precedent for future presidents, making it more likely that the amendment will be used in the future. It could also lead to increased political polarization and instability. However, it could also be seen as a necessary step to ensure the stability of the country and to protect the interests of the American people.
Show Notes
The New Yorker contributor and Harvard Law professor Jeannie Suk Gersen joins Tyler Foggatt to discuss a once obscure constitutional provision that allows Cabinet members to remove an unfit President from office. Gersen believes it’s time to use it on Biden. “The Twenty-fifth amendment was designed for a situation in which the President may not recognize his own impairment,” she says.
This week’s reading:
- “This Is What the Twenty-fifth Amendment Was Designed For,” by Jeannie Suk Gersen
- “The Reckoning of Joe Biden,” by David Remnick
- “Joe Biden Is Fighting Back—but Not Against Trump, Really,” by Benjamin Wallace-Wells
To discover more podcasts from The New Yorker, visit newyorker.com/podcasts. To send feedback on this episode, write to themail@newyorker.com.
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