Laws in every state govern wills and the transfer of estates and property upon a testator’s death. For example, Virginia statutes provide that “any individual may make a will,” except testators who are unemancipated minors or “of unsound mind.”
Unsound mind generally means not having mastery of one’s mental faculties, which could include being enfeebled enough that the testator is easily subject to improper influence by others, especially someone who would benefit from provisions of the will.
Virginia law considers someone to be of unsound mind if his or her cognitive capacity is totally impaired, meaning the person is incapable of acting rationally or understanding conversations, instructions or decisions. In other jurisdictions, impairment may not have to be “total.” Wills executed by such persons are rendered invalid, null and void.
How might these guidelines apply in other circumstances – decisions by President Biden, for instance?
Joe Biden’s declining mental and physical capabilities were apparent to many even before his election and inauguration. His Delaware basement campaign, to avoid awkward encounters with reporters and citizens, raised many questions. During his presidency, family, White House staff, legacy media, Democrats in Congress and others worked hard to hide, obfuscate, defend and excuse his infirmities, even as they became harder to deny.
Millions wondered just when President Biden became cognitively incapable of leading the United States and Free World. His inability became so obvious during the June 2024 Biden-Trump debate that Democrat Party leaders pushed the 46th president out of the race. But what about before that?
An article published shortly before President Trump’s 2025 inauguration revealed that House Speaker Mike Johnson knew Mr. Biden was no longer “in charge” of the White House, presidency or country long before his cognitive incapacities were finally acknowledged by those whose jobs, prestige or political agendas depended on him being “the best Biden ever.”
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During a January 2024 Oval Office meeting with President Biden, the Speaker particularly wanted to discuss a Biden Executive Order that blocked liquefied natural gas exports to Europe. Russia’s war with Ukraine, the likelihood of renewed European dependence on Russian gas if US LNG exports were terminated, and the extent that would enrich Putin’s war machine made this a serious national security issue. Johnson wanted to know WHY Biden had signed the EO just weeks earlier.
“I didn’t do that,” Biden insisted. But in fact, he had.
Johnson suggested that Biden’s staff print the EO, so that the two of them could read it together. Biden finally, but vaguely, acknowledged signing the order. But as PJ Media columnist Matt Margolis noted, it soon “became evident that the President had no grasp” of actually having signed the EO, or of the implications of having done so.
“I thought, we’re in serious trouble. Who is running the country?” Margolis quoted Johnson. “I don't know who put the paper in front of him, but he didn’t know,” either, Johnson added.
“This exchange underscores a chilling reality,” Margolis wrote. We had a president who not only was “struggling to remember critical decisions” but was also “unable to engage fully in high-stakes discussions with national security implications.” Biden was clearly “not fully in charge.”
When did that incapacity actually set in? And what does that imply for dozens, perhaps hundreds, of executive actions, regulatory sign-offs and presidential signatures enacting legislation into law?
Are they still valid? Or have some (or many) been rendered null and void, because President Biden was no longer in control of his mental faculties? Or because he was enfeebled enough that he was subject to improper influence by staffers who were pursuing agendas even more radical than the president would have agreed to, had he actually been “in charge,” including staffers who might benefit from certain presidential decisions?
Executive Orders can be reversed by EOs signed by a successor president. President Trump did that with a flurry of signatures during his first week in office. Formal rulemakings must go through a more lengthy and thorough process but can still be undone or rewritten by another administration.
That will certainly be the case with the Obama EPA’s “Endangerment Finding,” declaring that plant-fertilizing, planetary-life-giving carbon dioxide “endangers human health and welfare.”
However, the Biden Administration promulgated 3,248 final rules and regulations, totaling a record 107,262 Federal Register pages. They reflect President Biden’s determination to exert federal control over nearly every aspect of climate change, “equity and social justice,” economic and environmental issues, and our daily lives.
Many of these rulemakings will undoubtedly be examined and reversed under the Congressional Review Act. Others will fall outside its purview and require more than Trump Executive Orders.
And what about Biden’s pardons, many of them murderers and hardened criminals; others convicted offenders like his son; still others people who haven’t yet been charged or convicted of crimes but were given preemptive pardons, in case prosecutors later decide no one should be above the law?
Still more complicated will be legislation, such as the multi-trillion-dollar, pork-laden, Green-New-Deal-subsidizing Inflation Reduction Act, the $1-trillion infrastructure law, the Creating Helpful Incentives to Produce Semiconductors (CHIPS) and Science Act, the Infrastructure Investment and Jobs Act, and many others signed by Mr. Biden.
If they merit revision or recission, must Congress and President Trump go through an entire legislative process – and overcome almost certain Democrat “resistance” – to change or cancel them?
Or do some of these Biden Era laws (and regulations and pardons) fall within the parameters of a wills and estates “unsound mind” analog? If so, at what point was President Biden too cognitively impaired to know what he was agreeing to or signing? Who makes that determination, and on what basis?
It’s definitely a case of first impression, and the outcomes are far from easy, ensured or predictable. But it’s also another way for President Trump and Republicans to reexamine extreme Biden Era decisions.
I went to law school, was licensed in two states, practiced mostly legislative and regulatory law, even wrote a couple of Supreme Court briefs. But mostly I’ve been a policy wonk – pondering, developing, promoting, opposing, and implementing or rejecting public policies.
That status reminds me of humorist Will Rogers’ answer to the threat of World War I German U-boats that were savaging Allied shipping. Rogers proposed that the US Navy “heat the Atlantic Ocean to the boiling point. Then, when the ocean gets too hot for them German subs to stay underwater, they’ll have to come to the surface” and we can “pick ‘em off one by one.”
Of course, some admirals would likely ask how they were supposed to boil the ocean. Rogers had an answer. “I leave that to the technicians. Myself, I’m a policy man.”
Like Will Rogers, all I’m doing here is presenting policy ideas. It’s up to President Trump, Congress, courts and neuropsychologists to figure out how to implement them.
Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow (www.CFACT.org) and author of books and articles on energy, environment, climate and human rights issues.
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