Government

If Biden's Incapacitated, Harris Succeeds, Which Could Cause Utter Gridlock

My little thought experiment reveals just how nervous I am about partisanship in America.

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Here’s a thought experiment.

The Democrats somehow manage to win both of the senatorial races in Georgia, dividing the Senate 50-50. Vice President Kamala Harris breaks the ties, giving Democrats the majority.

Then, suppose something happens to President Joe Biden. (Don’t get me wrong here. I wish him a long and happy life. But he is 78 years old, and the presidency is stressful. It’s not inconceivable that Biden could become unable to hold office at some point during the next four years.)

Under the 25th Amendment to the Constitution, Vice President Harris succeeds to the presidency, and the vice presidency becomes vacant. Here’s the succession process:

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.

So Harris nominates someone.

There’s a Democratic majority in the House of Representatives, so the House votes to confirm the new vice president.

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But the Senate is now deadlocked 50-50, and there’s no vice president in place to break the tie.

I hate to be a pessimist realist, but Mitch McConnell would be nuts to confirm anyone as vice president. With the office empty, McConnell would have the ability to deadlock every vote in the Senate at 50-50, and nothing could pass without Republican consent. The instant McConnell allowed a vice president to be confirmed, the Democratic vice president could begin breaking ties in the Democrats’ favor.

Three thoughts:

First, I don’t think the 25th Amendment envisioned this situation. Someone with the ability to speak wisdom to power should identify this situation and cause it to be fixed, either by constitutional amendment (which would become effective sometime in the future, so no one would think it’s an effort to get Harris’ nominee confirmed) or by statute.

Second, my little thought experiment leaves Nancy Pelosi next in line for the presidency if something were to happen to Harris. Harris appears to be a strong and vibrant woman, so there’s no reason to think this eventuality would come to pass, but I bet the very idea of President Pelosi gives Mitch McConnell the shivers. Perhaps he’d agree to some centrist vice president simply to avoid the chance of Pelosi succeeding to the presidency. Or perhaps McConnell’s reaction depends on when Biden became unable to perform the duties of his job: If Biden were incapacitated in February 2021, leaving Harris in office for four years, McConnell might worry. If Biden were incapacitated late in 2024, McConnell might let it ride.

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Finally, has it really come to this? My little thought experiment reveals just how nervous I am about partisanship in America and the parties’ apparent unwillingness to do anything for the good of the country.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com

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