Pelosi’s 25th Amendment Commission
A clever political gambit that raises real issues.
Speaker of the House Nancy Pelosi is about the launch a press conference announcing legislation ostensibly clarifying Congress’ role in evaluating the President’s fitness under the 25th Amendment.
She floated the idea yesterday:
House Speaker Nancy Pelosi is questioning President Donald Trump’s fitness to serve, announcing legislation Thursday that would create a commission to allow Congress to intervene under the 25th Amendment to the Constitution and remove the president from executive duties.
Just weeks before the Nov. 3 election, Pelosi said Trump needs to disclose more about his health after his COVID-19 diagnosis. She noted Trump’s “strange tweet” halting talks on a new coronavirus aid package — he subsequently tried to reverse course — and said Americans need to know when, exactly, he first contracted COVID as others in the White House became infected. On Friday, she plans to roll out the legislation that would launch the commission for review.
“The public needs to know the health condition of the president,” Pelosi said, later invoking the 25th Amendment, which allows a president’s cabinet or Congress to intervene when a president is unable to conduct the duties of the office.
Trump responded swiftly via Twitter.
“Crazy Nancy is the one who should be under observation. They don’t call her Crazy for nothing!” the president said.
Now, obviously, this is mostly a political stunt and a good one. Congress isn’t even in session and there’s simply zero chance that the Republican-majority Senate is going to go along with any of this.
Under our current understanding of the 25th Amendment, the initial determination that a President is unfit to continue serving comes from the President’s own administration, not the Congress or any “commission.” But it doesn’t have to be that way:
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 [emphasis mine], 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.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
I am not a lawyer and “any such body” is vague. But it seems reasonable to interpret it in such a fashion to empower Congress to create an independent commission for this purpose.
Indeed, it makes sense to do so. As has become crystal clear with this administration, Section 4 is essentially meaningless so long as a President’s sycophants are the ones making the determination. We really need some way to have a non-partisan check on the system against a mentally incompetent President.
Additionally, it seems rather obvious to me that the Presidential Succession Act needs revision. As I’ve argued before, having the Speaker of the House—who is often of the opposite party from the President—as second in line simply makes no rational sense and creates incredibly perverse incentives.
The rationale, endorsed by Harry Truman, was that the Presidency should go to an elected official rather than, say, the Secretary of State, who was merely appointed. But that’s just unworkable in our modern party climate.
UPDATE: I listened to much of the press conference and it was well-handled. Pelosi and Raskin steadfastly refused to make it about Trump or the present circumstance, merely arguing that the fact that so many senior officials were infected drew attention to the fact that there is no independent body. Additionally, they’re proposing that it be bipartisan, appointed equally by both parties, and consisting of a combination of statesmen and esteemed medical professionals.
This is likely going nowhere soon but it’s actually a worthwhile endeavor that should be given serious attention after the election.
UPDATE 2: More from CNN on the substance:
The new proposal would create a commission of 17 people — eight appointed by Republicans and eight appointed by Democrats — as well as a chair selected by the entire body. That commission could study the President’s health as well as request an exam of the President. If the President refused, the commission could make a judgment on the President’s condition with the information they already had. A majority of the commission could vote to remove the President, but only with the Vice President.
That commission would be made up of physicians as well as former executive office holders, and could include past presidents, vice presidents, secretaries of state or other former executive branch office holders. Raskin told CNN in an interview that the thinking is that those individuals would be best equipped to understand the duties of the Presidency and make a determination about whether a president was fit for office.