Why Kamala Harris can’t depose Joe Biden

One of the recurring concerns that I’ve heard about the 2020 election is the fear that Kamala Harris will declare Joe Biden incompetent and have him removed from office. Harris would then become president and Nancy Pelosi would be elevated to the vice presidency, or so the theory goes. This was always an unlikely possibility that was intended more as a scare tactic than a concern grounded in reality. As election returns continue to come in, the possibility of such a coup is even more remote.

The most obvious flaw in this conspiracy theory is that Joe Biden has demonstrated over the past few months that he is not senile. It was easier to paint Biden as a dementia patient before he bested Donald Trump in two debates and held a live town hall in front of the nation. Biden has also given several live televised speeches at this point, and the evidence that he is mentally incompetent is just not there.

Biden is also much more popular than Kamala Harris. Although Harris was painted as a shoo-in by many in both the mainstream and conservative media, she was one of the first candidates to drop out of the Democratic primary. She ended her campaign on Dec. 3, 2019 after failing to gain traction.

Although the conservative media paints Harris as a liberal bogeywoman, she is not that popular with the progressive left, which prefers Bernie Sanders and Elizabeth Warren. Black voters rejected her for Joe Biden. Harris currently has a negative favorability rating among the nation at large and is only marginally popular within her own party.

The point here is that Harris has no progressive constituency that would support such a nefarious move against Biden, the man of the hour who is the toast of the Democratic Party after his defeat of Donald Trump. An unpopular vice president removing a popular president under suspicious terms would not end well for either Harris or the country.

If Harris’s relative unpopularity among both Democrats and the nation at large isn’t convincing, the rules for declaring a president incompetent should kill the conspiracy theory. The 25th Amendment sets out the rules for presidential succession so let’s examine what would be required in such a scenario.

The 25th Amendment is a complex amendment that is comprised of four sections. Section one is straightforward:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

The second section is clear and concise as well:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

One part of the conspiracy is debunked here. While the speaker of the House is third in line of succession to the presidency, the speaker does not become vice president if the current vice president assumes the presidency. The Constitution clearly states that the new president will nominate a new vice president, who must then be confirmed by Congress.

The third section details what would happen if the president chooses to step down on his own initiative:

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

While some versions of the conspiracy theory speculate that Biden intends to step down and pass the presidency to Harris, these claims are so far without evidence. Nor do they pass the smell test. No objective observer can watch Biden’s performance in the debates and town halls over the past few months or his address to the country on Friday night and come away with the conclusion that the man who ran for president three times does not really want to be president. This is not a man who intends to take office and then resign.

The fourth and final section of the amendment is the most complex. Perhaps that is why so many of the conspiracy theorists seem not to have bothered to read it.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
     
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Section four spells out exactly how a president can be removed if he is unable to fulfill his duties. The first step is that the vice president and a majority of the cabinet must agree that the president is unable to “discharge the powers and duties of his office.” In other words, removing Biden would not be at the sole discretion of Harris. She would have to obtain the agreement of a majority of cabinet officials who were just appointed by Biden to their jobs to become the acting president. Presumably, loyalty to the Biden would be a factor filling these jobs.

But the process does not end there. If President Biden disputed the cabinet’s decision, he would resume the role of president (and presumably be much less trusting of Vice President Harris afterward). If Harris continued to force the issue, Congress would decide whether the president was capable of continuing. Upholding the president’s removal would require a two-thirds majority in both houses of Congress. This is a higher bar than for impeachment which requires a simple majority in the House and a two-thirds vote in the Senate.

Even if Republicans did not retain control of the Senate, the vote to remove the president would have to be a bipartisan one. Simple math tells us that a two-thirds majority would require 290 votes in the House and 67 votes in the Senate. Democrats briefly held a supermajority in both houses from 2009 to 2011 but Congress will be closely divided in 2021.

When the Constitution is considered, the possibility of Kamala Harris having Joe Biden declared incompetent is even more remote than Donald Trump pulling out a popular vote victory. There is approximately zero chance that Republicans would side with Harris to remove President Biden, but I have to admit that the possibility of Republicans in Congress rallying to save the Biden Adminstration is intriguing.

Nevertheless, some conspiracies go one step further. What if Harris had Biden whacked? Killing the president would bypass sections three and four and revert to the simplicity of section one.

There are multiple problems here, beginning with the fact that there is not a shred of evidence that Kamala Harris is morally capable of ordering the murder of her political ally and friend. There is also the obvious problem of Biden’s Secret Service protection and the inherent risks of such a plot. If such a conspiracy was real and discovered – either before or after the fact – it would be an impeachable and criminal act. At that point, we would likely see bipartisan impeachment proceedings.

It would make far more sense for Kamala Harris to serve Biden loyally and hope to be his successor. There is speculation that Biden may serve only one term due to his age and a vice president who had not committed treason would have an advantage in competing for the Democratic nomination.

However, Republicans can take some comfort from the fact that, although 14 vice presidents have ascended to the presidency only six of these have been elevated through elections. Eight gained the office through the death of the president. So, if Joe Biden survives his term, and there is little reason to think that he won’t, Harris stands a good chance of losing to a Republican candidate in either four or eight years.

The conspiracy theories that Joe Biden is a Trojan horse to install Kamala Harris as president are completely unfounded. These claims are merely scare tactics that were intended to undermine the Biden campaign during the election and should not be treated seriously.

Follow David Thornton on Twitter (@captainkudzu) and Facebook

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