How Can Biden Be Replaced? A Guide to Democrats’ Next Steps
by , political columnist for Intelligencer since 2015

“Democrats who are freaking out about Joe Biden’s dismal performance in his Atlanta debate with Donald Trump have a lot of question about their options going forward. Now that talk of replacing the president as the Democrats’ 2024 nominee has gotten serious, distant historical precedents and arcane Democratic National Committee rules are suddenly very relevant. Here’s a guide to what happens if Democrats choose another candidate to face Trump in November.

Can Biden still be replaced?
Sure. At this point he is simply the “presumptive nominee.” The Democratic National Convention in Chicago, which begins on August 19, would normally name the actual nominee. But in order to meet Ohio’s general election ballot deadline of August 7, the Democratic National Committee has voted to hold a “virtual roll call” before the convention (the exact date has not yet been set, though July 21 has been floated as a possibility, raising suspicions the DNC may be trying to run out the clock on any Plan B scenario). Until then, the name that will go onto the bumper stickers, theoretically at least, could be Joe Biden, me, or you.

Would Biden have to drop out? Or could he be replaced against his will?
If Biden is to be replaced, it would be much easier — and from a political point of view, immensely better — if Biden withdrew as a candidate. For one thing, that would get rid of the obligation delegates had to support him under the laws of 14 states. And it could pave the way to a reasonably harmonious convention and far less disruption of the general election campaign. But technically speaking, a majority of convention delegates can nominate whomever they wish. State laws aside, pledged Democratic delegates (unlike Republican delegates) have no more than a moral obligation to back their candidate, and a convention-passed rule could even override state laws.

Does Kamala Harris have to be Biden’s replacement?
No. Like Biden, until she is formally renominated (again, via a virtual roll-call vote at some point prior to August 7), the vice-president has no special status. Even if Biden resigned his office and Harris became president, she’d have to be nominated by delegates to appear on the November ballot.

Which other Democrats could replace Biden?
In theory, anyone who met the constitutional qualifications to serve as president could replace Biden. In reality, there’s no sort of consensus behind any particular “replacement” candidate. (Perhaps the most discussed fallback candidate, former First Lady Michelle Obama, has repeatedly denied interest.) No one is likely to step forward as long as Biden is still running, and if Biden withdraws, his support for a replacement will be all-important and perhaps dispositive. There’s no reason to think he’d back anyone other than his vice-president.

Names of Democrats who have been kicked around in fantasy scenarios for a Biden-less ticket have included a number of governors — notably California’s Gavin Newsom, Illinois’ J.B. Pritzker, Michigan’s Gretchen Whitmer, and Pennsylvania’s Josh Shapiro — along with 2020 candidate and Transportation Secretary Pete Buttigieg and some real long shots like Senator Raphael Warnock of Georgia. Some progressives might even note that Representative Alexandria Ocasio-Cortez turns 35 in October. But again, there’s no consensus, and while pundits thrill at the idea of an “open convention” where multiple candidates duke it out, that would be a nightmare for a party trying to plan a general election campaign.

There’s been an effort by some voices who favor a non-Biden, non-Harris solution to the current quandary to imagine some sort of pre-roll-call public gatherings — perhaps even debates — to build consensus. It’s unclear whether this sort of “mini-primary,” as Democratic poohbah Jim Clyburn called it, is in any way feasible. (It’s possible Clyburn was referring to a process for choosing a new VP to run with Harris, whom he earlier endorsed for the presidential nomination if Biden “steps aside.”). In any event, all these “open convention” scenarios should be assessed in terms of the disaster that could face Democrats if they push aside both Biden and Harris and then deadlock on a nominee. One unhappy precedent is the Democratic Convention in New York exactly a century ago, where a dispirited and divided party nominated an obscure diplomat after 103 ballots who got absolutely clocked in the general election.

What would the process look like at the convention?
The presidential balloting is scheduled to take place prior to the convention. But the process, virtual or live, would be the same: a name or names would be placed into nomination by a delegate, and state delegations would vote in alphabetical order until someone has a majority.

What’s the role of Democratic superdelegates?
Unlike Republicans, Democrats have superdelegates — 744 of them in 2024 — who attend the convention in recognition of the offices they hold (or held). They include members of the DNC; members of Congress; governors; and former presidents and vice-presidents. They are free to support whomever they wish but cannot vote on the first ballot, when the nomination will very likely be determined.

How would a new vice-presidential nominee be selected?
Just as the old vice-presidential nominee was chosen: by a roll-call vote. This person would probably be the presidential nominee’s preferred running mate, but delegates could choose someone else. The last time there was a serious convention vote for someone other than the presidential nominee’s running mate was at the 1968 RNC, when George Romney got a significant number of votes against eventual nominee Spiro T. Agnew.

Could Biden be replaced after the convention?
Members of the Democratic National Committee (not convention delegates) have the power to fill vacancies on the presidential ticket by a simple majority. It exercised that power in 1972 when then-Senator Thomas Eagleton stepped down as George McGovern’s running mate after revelations of drunk-driving charges and electroshock therapy. So if Biden or Harris or anyone else resigned from the ticket after the convention, the DNC could replace them. But there’s no clear power to remove a nominee who won’t go quietly.

Has a party ever replaced its presidential nominee?
No. Plenty of presidential nominees have begun the general election campaign in a deeper hole than Biden is in right now, but none have been replaced. The talk of replacing him is largely a function of the special horror Democrats have for the prospect of a second Trump term.”

This Is What the Twenty-fifth Amendment Was Designed For
by Jeannie Suk Gersen / July 3, 2024

“In a live broadcast of “The Daily Show” immediately after the Presidential debate last week, the comedian Jon Stewart joked about President Joe Biden’s open-mouthed stare: “A lot of people have resting Twenty-fifth Amendment face.” A once obscure constitutional provision, the Twenty-fifth Amendment became familiar to the public during Donald Trump’s Presidency, when there was constant chatter about his mental unfitness and incapacity. (I wrote about it for The New Yorker on five separate occasions.) The Constitution allows a President who is “unable to discharge the powers and duties of his office” to step aside or be removed and have the Vice-President “immediately assume the powers and duties of the office as Acting President.”

Soon after January 6, 2021, when a mob incited by Trump stormed the Capitol to disrupt the certification of Biden’s win, Chuck Schumer, then the Senate Minority Leader, and Nancy Pelosi, then the Speaker of the House, said that Trump should be removed from office using the Twenty-fifth Amendment, with Schumer describing it as the most effective legal means of removing a President and saying that “it can be done today.” That did not happen. Now is really a good time for Democratic leaders to dust off their knowledge of the Amendment—this time regarding their own party’s President. The widespread anxieties about Biden’s age-related impairment have increased over time, only to be shushed by his allies.

They became most plainly justified during his painful and prolonged public exposure on television during last week’s debate. The fact that many prominent Democrats have yet to say the obvious and instead have told voters not to worry about one bad debate is a poignant national version of the denial that almost every family eventually goes through with respect to an aging patriarch or matriarch. This is clearly happening in Biden’s own family, with his wife, Jill, and his son Hunter reportedly insisting that he continue his campaign, and with Hunter even said to have accompanied Biden to White House meetings. It is time for our leaders to realize that this is not in fact a family matter and take seriously their own constitutional responsibility to determine whether the President—not the team around him—has the capacity to govern.

The “will he or won’t he” speculation in the past few days has been about whether Biden will choose to step aside as the Democratic nominee in the Presidential race, which reflects a desire to leave the President to make the decision about whether he can beat Trump in November. This is misguided. First, it puts the cart before the horse: the initial question for any campaign should be whether the candidate has the ability to lead. Second, if Biden were to step aside as the nominee, we all know it would open up possibly catastrophic uncertainty about who the Democratic nominee will be, even if he were to indicate which candidate he preferred to take his place on the ticket.

The chaotic process of quickly selecting a new nominee could consume Democrats and doom their chances in November. That makes it difficult for me to confidently wish for Biden to decide to step aside as the nominee—and likely impossible for him, his family, and Democratic leaders to think it is the responsible thing to do at this point. But there is a better path. Instead of making a choice between remaining on the ticket or stepping off of it, Biden should resign from the Presidency altogether as soon as possible.

The Twenty-fifth Amendment says that in the case of the President’s resignation, the Vice-President—Kamala Harris—becomes the President. (Harris would have to nominate a Vice-President, who would then take office upon being confirmed by both houses of Congress.) President Harris could then run as the incumbent—a benefit to her candidacy that would also offer the stability we desperately need. We would not have to fret intensely about an open convention or anticipate a divisive and bruising fight over who the nominee will be.

This allows an orderly transition—in place of mayhem—in which Biden cedes smoothly to Harris and sets the stage for a campaign season focussed on a version of the Biden-Harris Administration with Harris as its representative. By November, President Harris would already have had four months on the job. Biden and those who love him could campaign for her based on his Administration’s record and accomplishments. If Biden resigns soon, then there is little reason to discuss the ins and outs of the Twenty-fifth Amendment.

If a permanent resignation seems too extreme for him to contemplate, the Amendment’s Section Three provides a way for the President to cede the office to the Vice-President without the finality of a resignation. Biden can make “a written declaration that he is unable to discharge the powers and duties of his office,” and Harris would become the acting President. That would still likely place Harris in the political position to immediately become the de-facto incumbent. But if Biden resists either an outright resignation or a break for the rest of his term under the Twenty-fifth Amendment, then it would be time to look to Section Four of the Amendment, which covers removing the President involuntarily.

The Vice-President and a majority of the Cabinet can declare that Biden “is unable to discharge the powers and duties of his office,” whereupon Harris would become the acting President. At that point, Biden could say that “no inability exists” and resume his office, but I can’t imagine that he would do so after his Vice-President and Cabinet have taken such a step. (In that event, Harris and a majority of the Cabinet, or some “other body as Congress may by law provide,” could once again declare the President’s inability, and he could be removed by a two-thirds vote in both houses.) I doubt it would ever have to get so far as involuntary removal.

Indeed, the Twenty-fifth Amendment’s removal mechanism is most useful right now for persuading Biden to leave the office voluntarily—so that Harris can become the President for the remainder of the year. In 1974, a delegation from Congress went to the White House and told President Richard Nixon that he would be impeached if he did not resign, and he resigned the next day. Something similar needs to happen today, with Democratic leaders and Cabinet members talking to Biden about what they might be willing to do under the Twenty-fifth Amendment if he does not resign.

This did not happen after President Woodrow Wilson had a stroke, in 1919; his wife Edith took over many of his duties until his second term ended, in 1921, and the American public was none the wiser. President Ronald Reagan began showing signs of Alzheimer’s as early as three years into his first term, according to his son Ron’s 2011 book, “My Father at 100.” His family and staff managed to hide the symptoms from the public as long as he was in office. We should feel grateful that it is much harder to hide or credibly deny such impairment in a President today.

Biden has made clear that democracy is at stake in this year’s Presidential election. He is the duly elected President and the nominee selected by Democratic voters in all states. It seems highly antidemocratic to remove, or even threaten to remove, a President from office. But those who believed that Trump’s incapacity, and then his resistance to a peaceful and democratic transfer of power, would have justified using the Amendment to remove him might take a moment to wonder whether we are currently being governed—and hoping for four more years of being governed—not by a President but by his aides, whom we certainly have not elected.

During Trump’s Presidency, the senator Bob Corker called the White House “an adult day care center.” Several commentators reported that, after seeing last week’s debate, they felt that subjecting Biden to the 2024 Presidential campaign is a form of elder abuse. It is entirely normal for a person of lifelong accomplishment to fail to recognize that the time has come to retire, and for people around them to work hard to protect his ego and pride. But this is the Presidency, and the White House may soon be a highly staffed nursing home for one man. Biden’s dignity and legacy require that he or the leaders of his party not let it get to that point. That would also allow the Democrats an orderly way to provide a Presidential candidate who will not decline rapidly before our eyes.”



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