Postapocalyptic GOP buzz: What about the 25th Amendment for Biden?

AP Photo/Susan Walsh

Fuhgedaboudit. Democratic and media [redundant, I know] critics of the president often misconstrued both the meaning and the mechanism of the 25th Amendment in 2017. If Republicans think that this removal process will work in the wake of Joe Biden’s clear incompetence in bugging out of Afghanistan, they have several more thinks coming.

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In the meantime, it does make for a fun discussion — as well as a little bookended payback, I suppose. Or maybe more accurately, Sen. Rick Scott (R-FL) supposes:

Sen. Rick Scott, the chair of the Senate GOP campaign arm, questioned Monday whether President Joe Biden’s cabinet should remove him from office, a near impossibility, over the sudden collapse of Afghanistan.

Scott, who is widely viewed as a potential 2024 presidential candidate tweeted: “We must confront a serious question: Is Joe Biden capable of discharging the duties of his office or has time come to exercise the provisions of the 25th Amendment?” …

While Senate Republicans have widely lambasted Biden for his administration’s handling of the troop withdrawal, Scott is the only one so far to bring up the possibility of invoking the 25th Amendment, which lays out the presidential order of succession.

Er … what does Scott mean by “we”? Here’s the first problem: the 25th Amendment removal process in the case of incapacitation doesn’t get initiated by Congress. It gets initiated by either the President himself (as has occasionally happened in temporary situations for surgeries, etc), or the Vice President and a majority of confirmed Cabinet secretaries. The only role Congress has in that process is receiving the message, and to settle disputes over incapacitation if the President responds that no disability exists.

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So Scott doesn’t have much to say about it, just as Jackie Speier didn’t have any role in it in February 2017.

Second: The text of the 25th Amendment makes it clear that it is only to be used when “the President is unable to discharge the powers and duties of his office,” emphasis mine. This process doesn’t apply to incompetence or failure, but only non-competence, either willful or by disability, as well as temporary or permanent impediment.

If Congress wants Biden removed on the basis of incompetence, then the proper remedy is impeachment and removal. It would have to be framed in terms of “high crimes and misdemeanors,” but one could probably cite the Americans left in the hands of the enemy, as almost certainly will happen in Kabul, in either category. Scott’s not talking about impeachment, however, because it’s not going to happen. Democrats control both chambers of Congress, so even if Republicans were united on the idea, it wouldn’t even get to the floor for a vote.

And not only are Republicans not united on the idea, there isn’t even unity among Florida Republicans on the idea:

In Jacksonville Tuesday, Sen. Marco Rubio would not sign on to Sen. Rick Scott‘s urging of the invocation of the 25th Amendment to the U.S. Constitution, which would remove Biden and replace him with Vice President Kamala Harris.

“Yeah, I don’t foresee that happening,” Rubio told Florida Politics.

Rubio went on to say that his focus “has been on the policy of it,” referring to the Taliban sweep of the country in the wake of an expedited U.S. exit.

“The administration dismissed bipartisan concerns,” Rubio said, leading to “rage and outrage on all sides, both sides of the aisle.”

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There’s one other problem with pushing Biden under the 25th Amendment bus, as my colleague Joe Cunningham wrote this morning. How would Democrats get a VP confirmed afterward?

Kamala Harris is currently the tie-breaking vote in the Senate, and Republicans are only crossing over if Mitch McConnell supports a bill or if he realizes the Republicans will lose the fight anyway. He has a very tight grip on his caucus, and he can get his 50 votes whipped if he wants to make a stand. So far, he hasn’t had to. But there is a lot of power to be had in a 50-50 Senate with no tie-breaking vote, and he will take advantage of it.

So, Kamala Harris becoming the President via the 25th Amendment means the Democrats lose their tie-breaking vote in the Senate, and without a 51st vote, there is no way for the Democrats to break a tie in the Senate in order to confirm a replacement Vice President. They are effectively stuck.

Once Harris becomes president, she stops being the president of the Senate — and McConnell can make sure that Harris doesn’t get a chance to appoint another tie-breaker.

All of this is fantasy anyway. Democrats are stuck with Biden for the next three years. As are we all.

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