Four years ago, I wrote an article arguing that, because of the age and health of the two presidential candidates, voters should pay special attention to the vice-presidential nominees. There was, I noted, “a not-insignificant chance that either Trump or Biden could become incapacitated or die in the next four years,” resulting in the vice president becoming the chief executive. With a Joe Biden–Donald Trump rematch apparently still in the offing—at least until further notice—those concerns are even greater now.
In 2020, both candidates were significantly older and less fit than the previous three presidents. Biden was nearly 78, had a frail presentation, and limited his public appearances. His extensive medical history led President Obama’s former physician to state a year earlier that “he’s not a healthy guy.” Trump was just three and half years younger and, based on what was known of his medical profile, likely had some degree of coronary artery disease, as do most men his age.
Now both men are back for round two, four years older and, particularly in the case of Biden, seemingly physically and mentally diminished. Many voters believe that Biden is too debilitated to be president for another four months, let alone four years.
Article II, Section 1, Clause 6 of the Constitution states that, in the case of the president’s “Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.” But the text included no definition of inability and no set procedure for making this determination. For that, we have the Twenty-fifth Amendment, enacted after the assassination of John F. Kennedy. After considerable debate, Congress passed it in July 1965, and three-quarters of the states ratified it in February 1967.
One of the chief sponsors of the amendment, Senator Birch Bayh of Indiana, outlined its necessity in a Senate floor debate: “Today, with the awesome power at our disposal, when armies can be moved half way around the world in a matter of hours, and when it is possible actually to destroy civilization in a matter of minutes, it is high time that we listened to history and make absolutely certain that there will be a President of the United States at all times, a President who has complete control and will be able to perform all the powers and duties of his office.” Section 4 of the amendment, according to Bayh, was designed to deal with a president’s physical impairments or “a President who, although physically able, is not the man, from a substantive point, who was previously elected to that office. Thus arises the difficult problem of mental disability.”
Another of the amendment’s authors, Virginia representative Richard Poff, said in an earlier floor debate that Section 4 is meant to address a situation when “the President, by reason of physical or mental debility, is unable to perform his duties but is unable or unwilling to make a rational decision to relinquish the powers of his office.”
Section 4 provides that, when “the Vice President and a majority of either the principal officers of the executive departments [the Cabinet] or of such other body as Congress may by law provide” make a written declaration that the president is “unable to discharge the powers and duties of his office,” the vice president becomes acting president. If the president claims that “no inability exists,” the decision shifts to Congress, which can decide by two-thirds vote of both the House and the Senate to remove the president. Otherwise, the president maintains his office.
Congress has never created a separate body to implement the Twenty-fifth Amendment. Invoking Section 4 thus depends solely on the vice president and the Cabinet. Vice President Kamala Harris and the Cabinet, however, are unlikely to declare President Biden unable to serve during the next few months; most of the principals are political allies and friends of the president and want to avoid last-minute election chaos. The Twenty-fifth Amendment, in other words, remains a constitutional solution but one that, barring a major development, is highly unlikely to be used.
Thus, my advice from four years ago seems timelier than ever. Voters must pay close attention to the vice presidential candidates in this election.
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