Presidential Power Overreach A Constitutional Crisis

CNN's Jake Tapper has suggested that the alleged cover up of President Joe Biden's cognitive decline could be a scandal more significant than Watergate. The central question he poses is what the president didn't know and when he became unaware.

Following these concerns, the House Oversight and Government Reform Committee has intensified its investigation. Chairman Rep. James Comer (R–Tenn.) referenced Tapper and Alex Thompson's book, "Original Sin: President Biden's Decline, Its Cover-Up, and His Disastrous Choice to Run Again," in demand letters to senior Biden aides and subpoenaed the White House doctor who certified the president's fitness.

Many argue he was clearly unfit. Even in 2020, Biden reportedly struggled in tightly scripted Zoom town halls. Top Democrats who saw raw footage described it as watching someone who shouldn't be driving, unable to follow conversations. Cabinet members speaking to Tapper and Thompson described similarly scripted meetings where Biden needed a teleprompter for pre screened questions. One recounted being shocked by Biden's disorientation at a 2024 meeting. A campaign adviser questioned Biden's ability to form sentences after a post debate conversation.

These accounts suggest the president was "unable to discharge the powers and duties of his office," a condition for removal. Sen. Josh Hawley (R–Mo.) argued that the 25th Amendment should have been invoked from the start.

The fact that key figures allegedly supported an unfit president, aiming for reelection, points to a constitutional failure. This situation reveals a stark truth: as presidential power has grown, removing even clearly unfit presidents has become nearly impossible.

The 25th Amendment A Broken Safeguard

Ratified in 1967, the 25th Amendment offers two methods for a vice president to assume presidential duties. Section 3 allows a president to voluntarily transfer power; Section 4 allows the VP and a Cabinet majority to remove an incapacitated president.

Section 4 was designed for "mental debility," as Rep. Richard Poff (R–Va.) explained, for presidents unable or unwilling to step aside. The goal was to prevent a repeat of the Woodrow Wilson situation, where the First Lady effectively ran the government after his strokes. Rep. Emanuel Celler (D–N.Y.) warned, "We dare not let that happen again."

Arguably, a similar situation has just occurred. Biden's presidency, with reports of a close circle of advisers dubbed "the Politburo" and First Lady Jill Biden playing a significant role, mirrors the Wilson scenario.

Managing an Incapacitated President The Politburo Era

An inactive president might seem ideal to some, but governance doesn't halt. While The New York Times dismisses concerns about extensive autopen use as a "conspiracy theory," reports from the Heritage Foundation's Oversight Project suggest that from mid July 2022, many executive orders were signed remotely, even when Biden was in Washington.

Despite efforts to hide the president's condition, the Cabinet was aware. The vice president and eight Cabinet officers could have initiated removal via Section 4. Why didn't they?

For one thing, the 25th Amendment's "eject button" is almost impossible to trigger. Even broaching the possibility risks crashing the plane. Any single Cabinet member who disagrees could short circuit the process by informing the President, potentially triggering a cascade of firings. Something similar happened in 1920, when Wilson's secretary of state, Robert Lansing, was forced out for suggesting a transfer of power. Another problem, as noted by the Cato Institute, is that even with Cabinet support, it was unclear whether Vice President Harris could garner enough GOP votes in Congress to ratify the switch. Without a supermajority of both Houses, Biden would come back from time out and the firing frenzy would begin.

Beyond the 25th Impeachment's Ineffectiveness

According to Tapper and Thompson, the 25th Amendment solution was never even considered. Instead, the Politburo's reigning calculus was that Biden "just had to win and then he could disappear for four years—he'd only have to show proof of life every once in a while." Meanwhile, the same people hoping to defraud the electorate subjected the rest of us to lectures about threats to "our democracy."

Worse still, it isn't just the 25th Amendment that's broken. The Constitution provides another method for ejecting an unfit president before his term is up: the impeachment process. In the last five years, we've pressure tested both failsafe mechanisms. Neither one worked.

In his first term, President Donald Trump was impeached twice, the second time for provoking a riot while trying to intimidate Congress and his own vice president into overturning the results of an election he lost. Even that enormity didn't earn him conviction and disqualification in the Senate trial.

The fact that we've never managed to eject a sitting president via the impeachment process suggests that the framers set the bar for removal—conviction by two thirds of the Senate—too high. For Section 4 of the 25th Amendment, which requires a supermajority of both houses, the bar is even higher.

Lowering the bar to an impeachment conviction—say, to 60 votes—would better protect the public from an abusive president. It would also provide security against a future Biden Wilson scenario. Though impeachment aims primarily at abuse of power, it was designed as a remedy for presidential unfitness generally: "defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate," as James Madison put it. Properly understood, that covers cases of "mental debility."

Solutions Reducing Presidential Power for a Safer Democracy

Of course, that reform faces a dauntingly high bar of its own: It would take a constitutional amendment, the prospects for which are dim.

But making presidents easier to fire is only one way to tackle our fundamental problem; the other is to shrink the job. "Incapacity, negligence, and perfidy" in the presidency are bigger threats than ever, because presidents now have the power to reshape vast swaths of American life. They enjoy broad authority to decide what kind of car you can drive, who gets to use which locker room, who is allowed to come to the United States, and whether or not we have a trade war with China—or a hot war with Iran. That's more power than any one fallible human being should have.

Making the presidency safe for democracy will require a reform effort on the scale of the post Watergate Congresses: reining in emergency powers, war powers, the president's authority over international trade, and his ability to make law with the stroke of a pen. It's a heavy lift, but worth the effort. If we're worried about the damage unfit presidents can do, we should give them fewer things to break.