Posted BY: Larry Johnson
With the U.K.’s Prime Minister, Boris Johnson, headed for the exits, it is worth exploring whether or not Joe Biden will last his term or be forced into retirement. With growing expectations that the Republicans will sweep the House of Representatives and take back the U.S. Senate, I believe it is worth exploring whether Democrats want to cut their losses before the election and dump Biden or will they encourage him to resign before the Republican-controlled legislative bodies take control in January.
If the Democrats wait until after the Republicans are sworn in to engineer Biden’s exit, they face a real risk of not being able to appoint the Vice President to fill the job left vacant by Kamala Harris, who would replace Biden. Why? Any nominee put forward by Harris would have to be voted on by both the House of Representatives and the Senate. Here are the relevant portions of the U.S. Constitution:
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Article II, Section 1, Clause 6:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Twenty-Fifth Amendment, Section 2:
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.
Here are four possible scenarios:
- Joe Biden and Kamala Harris complete their first term.
- Joe Biden completes his first term but Kamala Harris resigns and a replacement is required.
- Joe Biden resigns the Presidency after January 1, 2023 and Kamala Harris replaces him as President.
- Joe Biden resigns the Presidency before January 1, 2023 and Kamala Harris replaces him as President.
If Joe Biden is unable to complete his term and either resigns or is removed from the Presidency under the 25th Amendment, the critical issue Democrats must consider is the timing.
If Biden resigns while the Democrats control the House and Senate there is little chance that the legislative bodies would block newly installed President Kamala Harris’ choice for Vice President. But that is not the current reality. The Democrats only control the Senate because Vice President Harris can break the 50/50 tie. If she is elevated to the Presidency she loses her vote as a tie breaker. That means Republican Senators will have a decisive voice in selecting Kamala’s successor. Let’s call this scenario 1.
Pursuing scenario 1 for a moment, what happens if Kamala nominates Barack Obama to be her Vice President. I am pretty sure most Democrats would welcome that move because they do not believe Harris could organize a three car funeral. With Obama waiting in the wings the Democrats would have the illusory hope that there was an “adult” who could take charge if Harris stumbles.
One little problem with naming Obama as Vice President–it is not clear whether Obama could take on the Vice Presidency in light of the restrictions presented in the 12th and 25th. The 12th Amendment states:
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
In light of the 25th Amendment limiting any person to two terms as President, there is a Constitutional question whether Obama (or George W. Bush) could be a Vice President. My point in raising this is to point out that nominating the wrong Democrat to the Vice Presidency under scenario 1 will likely be disputed and litigated.
Now for scenario 2–if Biden resigns when the Republicans control the House and the Senate the Republicans could refuse to accept any nominee from Harris. Instead, the Republicans could opt to leave the office vacant, which would mean the Republican Speaker of the House would be the de facto Vice President (i.e., the person next in line to Constitutionally succeed President Harris if she does not complete her term). Alternatively, the Republicans could try to nominate their own Vice President candidate. This too would be a Constitutional question given that the existing language states the President nominates and the legislature approves with majority vote. Scenario 2 is fraught with political chaos as well.
I think it is highly likely that Joe Biden will not complete his term. The key issue is whether he resigns voluntarily, is replaced under the 25th Amendment or does not come down for breakfast and goes to meet God. Interesting times ahead.