President Donald Trump recently said many executive actions taken by former President Biden are “null and void,” and a Republican lawmaker has called on the DOJ to investigate Biden’s cognitive decline while in office. These events once again place the former president’s mental acuity into the spotlight of the public debate.
This raises two major intertwined questions. The first relates to the incentives of Cabinet members to strip a president of his powers under Section 4 of the 25th Amendment. The second addresses the legality of acts authorized by mentally unfit chief executives.
Because it is uncommon for the leader of the free world to be visibly mentally impaired, it is important for policy makers to incentivize reducing the damage done by powerful, yet incompetent, leaders.
Historically, the actions of incompetent rulers were considered null and void. For example, in 1838, Middle Temple barrister John Shapland Stock stated unequivocally on page 40 of The Law of Non Compos Mentis, or Persons of Unsound Mind (London: Saunders and Benning) that “From the incapacity of a [mentally incompetent]to govern his own affairs seems to follow the corollary his Incapacity to govern those of others … and such is the principle laid down by all authorities.”
Stock then explicitly showed that “A [mentally incompetent person] is incapable of holding the office of King … and if his incapacity be undoubted, it devolves on the other portions of the governing body to take such steps as they think proper for the future government of the country during the Lunacy of the King.”
Alas, the treatise, like Section 4 of the 25th Amendment, remains silent on what happens if a mentally incapacitated person remains in charge. Both were written when such an outcome seemed improbable.
The U.S. Constitution clearly states that if the president is proved unable “to discharge the power and duties of the said office, the same shall devolve on the Vice President.” Concerns about a president’s fitness have arisen in the past.
Firstly, President James A. Garfield lingered for two months after being shot but he remained alert until the end and no major events forced resolution of the question of how he lawfully could be removed from office without his own consent.
Secondly, after President Woodrow Wilson suffered a stroke while on a speaking tour in the early autumn of 1919, some people believed he should resign or be removed from office. But his doctor, Philadelphia neurologist Francis X. Dercum, argued that Wilson was of sound mind and would recover with rest, just as scientist Louis Pasteur had after suffering a similar stroke. For the rest of his presidency, Wilson’s wife Edith, following the medical opinion of the day, acted as a gatekeeper between the president and the rest of the world. That raised suspicion that she had usurped the presidency, and she undoubtedly exercised discretion in many matters, but Wilson maintained his faculties to the point that his cabinet and vice president declined to move against him, especially after he forced the resignation of a cabinet member who appeared poised to force the issue. Wilson’s political prowess was much diminished and his administration accomplished nothing of import thereafter, losing fights against Volstead and for the League of Nations and a third Democratic party presidential nomination.
Thirdly, after suffering a heart attack and a stroke, President Dwight D. Eisenhower signed a letter of agreement with Vice President Richard Nixon that allowed Ike to relinquish and then reclaim the powers of the presidency under various scenarios. President John F. Kennedy later entered into a similar agreement with his VP, Lyndon B. Johnson.
These events foreshadowed Section 3 of the 25th Amendment, ratified in 1967. This amendment sought to formalize and regularize these precedents while also contending with the possibility that a mentally “deranged” or comatose person might control the nation’s increasingly potent nuclear arsenal. Section 4 of the 25th Amendment therefore details procedures to strip a living but physically or mentally incapacitated president of his or powers. Policy discussions regarding Section 4 explicitly included cases of “senility,” “mental illness,” and other impairments of “mental condition,” including cases where the president becomes “as nutty as a fruitcake” or so “utterly insane” that he could not perceive or articulate his own inability to exercise presidential powers.
Section 4 has never been invoked, likely because it makes the political cost of action clear but leaves the political cost of inaction implicit. The cost of invoking Section 4 is that a president stripped of his or her powers can regain them by declaring competence, which moves the decision to Congress, where a two-thirds vote of both House and Senate is required to maintain the VP as acting president. Unless the president is in a coma or speaking in tongues, it is likely that he will win that vote and then be empowered to rain holy hell upon those who dared to temporarily strip his powers. If the president loses, he can ask for additional votes until his term ends or his powers have been reinstated.
Except in the most extreme cases, therefore, the vice president and cabinet members will not calculate it is in their best interest to invoke Section 4 unless they must bear some cost for not invoking it when appropriate.
Such was the case with Biden, whose mental degradation was censored, hidden, and played down until he had to openly debate his opponent. Even then, the political calculus of a supermajority in both Houses made Section 4 too risky to invoke, so the DNC switched its presidential nomination to another candidate instead, leaving Biden the lamest lame duck president since Wilson.
What is missing from the usual political calculus is the cost of not removing a president who should have been relieved of duty, as Wilson and Biden should have been. The Democrats paid at the polls in both 1920 and 2024 but even higher penalties must be extracted in order to discourage wilful disregard for Section 4 in the future.
Stock’s analysis of the common law – which appears never to have been changed by statute or precedent and is consistent with commonsense and the temporary transfer of power that occurs when a president is mentally incapacitated by general anesthesia – suggests that federal courts should decide that any law, executive order, pardon, or other executive action that Biden signed during his mental incapacity is null and void. That is because of the breakdown in due process stipulated in Section 4 and mandated by other parts of the Constitution.
Unfortunately, although this is legally appropriate, there are numerous hurdles to this outcome. First, courts will undoubtedly differ on the precise date that Biden became mentally incompetent, so undoubtedly the Supreme Court will have to decide the matter, and the sooner it does the better, so as to minimize uncertainty.
Additionally, budgets and appropriations already paid cannot in justice be reversed or persons freed from prison reincarcerated, but prospective pardons and promises of forbearance or loan forgiveness certainly can be rescinded because they were uttered by a person of unsound mind and judgement. I’ll leave it to keener legal minds than my own to sort out the many, sticky details in other laws and executive orders signed during Biden’s “lunacy.”
Lastly, because of the political climate and the consequences of nullifying potentially hundreds of Biden’s executive actions, courts may be more inclined to uphold Biden’s edicts unless there is a showing of fraud. For example, the justice department finding evidence that specific executive action was taken without Biden’s knowledge, or under duress due to his decline in mental acuity, could give the courts the courage to tackle an otherwise politically dangerous subject that federal courts are understandably wary to litigate.
The key policy takeaway for the public is that reversing Biden’s executive actions will set a precedent that places costs on political actors who refuse to not remove a mentally incompetent president from office. Right now, rather than facing the wrath of a president who Congress might restore to power or watching the courts reverse substantial portions of your party’s putative achievements, political actors surrounding a president are incentivized to push through as much of his agenda, even if the president lacks the mental ability to perform his job duties.
Courts striking down many of the executive actions of an aging, less mentally quick president is the efficient rule if policymakers want Section 4 to function as intended.
