Last week's debate led many people, both Democrats and Republicans, to question President Joe Biden's cognitive abilities — to wonder whether he has a serious case of dementia that renders him unqualified to serve as President. I take no position on that question but the mere possibility that it is true raises serious constitutional questions. So let's assume either that President Biden has a serious case of dementia or hypothetically that a President who has served for nearly his entire term has such a case.
Assuming the assessment is true in fact or hypothetically, there are at least two interesting constitutional questions. First, is it an impeachable offense for the Cabinet Officials and the Vice President to have stayed silent about his infirmity? There is a strong argument that the answer is, yes. If the President was not up to being President, that is clearly something the country should have known. It also suggests that some other persons – probably White House staff, many of whom are not even officers of the United States under current law – have been secretly exercising presidential power. And knowing about such secret exercises without disclosing it is obviously problematic.
Such silence or secret exercises may not be crimes or even civil violations but it is generally thought that high crimes and misdemeanors do not require civil or criminal violations. The silence and secret exercises are clearly wrongful behavior.
It is true that section 4 of the 25th Amendment does not explicitly impose any obligation to disclose this information. It provides:
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.
This text does not explicitly obligate cabinet officials to inform the public about the matter or even to initiate actions if they believe the President is infirm. Still, one might argue that the text assumes that the cabinet officials would (or possibly should) initiate such actions. But even assuming that the 25th Amendment imposes no obligation, the Amendment certainly does not modify the high crimes and misdemeanors standard that would require that they not stay silent about infirmity or secret exercises of presidential power.
If this is true, then cabinet officials, especially the most important ones who see the President most often such as the AG, the Treasury Secretary, and the Secretary of State, would have committed impeachable offenses.
The second constitutional question is what actions — either by statute or constitutional amendment – can be taken to address this possible problem. One constitutional amendment I have already proposed would bar anyone from serving as President or Vice President if they were 70 years of age or over at the time of their election.
One possible statutory reform would obligate cabinet officers to inform Congress or the public if they believed the President was cognitively infirm. Another would require that the President take a cognitive test before an election or even annually. But these reforms are open to various abuses or counterarguments, so it might not make sense to pursue them, even if they could be applied constitutionally.
Posted at 8:00 AM