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:

Section 4

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.

FILED UNDER: Donald Trump, Nancy Pelosi, U.S. Constitution, US Politics,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. This is a brilliant piece of trolling on Pelosi’s part.
    Republicans are losing their f’ing minds.
    Meanwhile Trump called off Stimulus negotiations, and then caved, and made a counter-offer.
    Pelosi is playing him like a fat orange piano.

    12
  2. JKB says:

    Whenever the Vice President AND a majority

    That “and” will be of even greater importance. The amendment stops either from acting alone, but the non-VP entity (more credible if the Cabinet officers instead of some randoms not in the current public eye) cannot act without the Vice President.

    And what happens when the coup attempt fails? When the Congress doesn’t side with the plotters by 2/3rds majority? The VP is certainly isolated. If it is the Cabinet Secs. they are replaced. If it is some commission, they now depend on their fellow plotters to avoid the political price. The futile political impeachment last January at least could be left to politics.

    In any case, the administration of the US government and foreign policy is roiled.

  3. @JKB:

    The futile political impeachment last January

    Trump was impeached. He will forever be an impeached president.
    He is one of 3. He is the only one ever to receive a vote to remove from a member of his own party.
    You might want to look up the word, futile.

    20
  4. Mister Bluster says:

    roiled: be in a state of turbulence or agitation

    Like this

    1
  5. Mikey says:

    @Daryl and his brother Darryl:

    Republicans are losing their f’ing minds.

    And almost as if by magic, JKB shows up to prove it.

    20
  6. inhumans99 says:

    This should have been implemented last year when Trump was sent to Walter Reed and then, just like now he refused to be transparent with why he was hospitalized.

    I can’t help but think of the saying a day late and a dollar short. Implementing this committee after the election feels to me almost as pointless as trying to put toothpaste back into a tube.

    Trump’s insanity is playing out on national TV on a daily basis, and we are so close to the election that we just have to hope the American public does not want to spend another exhausting 4 years trying to make a toddler happy so he does not throw a tantrum.

    4
  7. HarvardLaw92 says:

    @Mikey:

    He has a valid point. The “and” is unavoidable. This is largely theater on Pelosi’s part, because whatever body they might come up with would require the agreement of the Vice President to be able to act under the amendment, it can virtually immediately be undone by the President via something as simple as a memo to Congress, and its action could only be made permanent / lasting against the President’s wishes via a two-thirds vote in both houses of Congress. This would be useful only in a scenario where the President was truly unable to function.

    2
  8. Gustopher says:

    I don’t see the point of this — the Republicans will circle ranks and it is so close to the election. The President seems mentally unfit to run the country right now — more so than ever since he got covid and steroids — but nothing will come of it.

    If the goal is just to rile up President CrazyPants, then sure, whatever.

    If the goal is to make a direct impact, I would rather the House have started drafting articles of impeachment for dereliction of duty with the Covid response, but many months ago. It’s a hard sell for conviction — as he has delegated authority to those who have then failed to act, rather than done things himself — but it would have been the best public oversight we could have gotten.

    The media pays attention to impeachment hearings. It might have shamed some of the people in the administration to push for using the Defense Production Act to get PPE in the hands of doctors, increase testing and get a national response.

    Plus, it would have been fun to make the Republicans in the Senate vote on whether “LIBERATE MICHIGAN” constitutes supporting an insurrection when armed protestors are storming a state capital.

    1
  9. @JKB:

    And what happens when the coup attempt fails?

    By definition, a constitutionally sanctioned and legally defined process is not a “coup.”

    Is it a coup if a president is impeached and removed?

    Is it a coup if the president loses an election?

    23
  10. Neil Hudelson says:

    JKB’s comment re: VP sounds like a “gotcha,” but is included in the very description of Pelosi’s proposal.

    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.

    5
  11. Neil Hudelson says:

    @Neil Hudelson Damn, lost the Edit lotto.

    Meant to add: that doesn’t change the fact that this is political theater, but let’s acknowledge it’s political theater that acknowledges the Constitution and is at first glance legally sound.

    8
  12. HarvardLaw92 says:

    @Neil Hudelson:

    Clarification: they could vote to transfer the exercise of the president’s powers to the Vice President (with his/her concurrence). Once they did so, the President can reclaim them by sending a memo to Congress asserting his fitness and intent to continue to act. Removal from office requires impeachment and conviction

    At that point, it would be up to the entire Congress, via two-thirds majorities in both houses, to override him, but even if they did so, he/she would remain in the office. It would basically create the VP a regent. For all intents and purposes, all this proposal of Pelosi’s would do is create an alternative to fill the cabinet’s role under the amendment. It’s largely theater.

    1
  13. Mikey says:

    @HarvardLaw92: I was referring to the inane blather about “coup attempt” and “plotters.”

    6
  14. Just nutha ignint cracker says:

    @Steven L. Taylor: JKB is setting the table for the argument that the election was stolen later when he does the RWNJ reprise of “he’s not MY president” in the new year.

    5
  15. Nightcrawler says:

    a commission of 17 people — eight appointed by Republicans and eight appointed by Democrats — as well as a chair selected by the entire body

    Sounds brilliant. Too bad we can’t do something similar with the SCOTUS, although 17 justices would be overload.

    1
  16. TomH says:

    She’s yanking Trump’s chain to make him act even more crazy, driving more votes toward Biden.

    More power to her.

    2
  17. Nightcrawler says:

    @inhumans99:

    Implementing this committee after the election feels to me almost as pointless as trying to put toothpaste back into a tube.

    It’s not pointless. It won’t help now, but it will prevent it from happening again.

    If an organization suffers a major cyberattack, and it’s found that a particular vulnerability caused it, you patch that vulnerability. It won’t do anything to reduce the fallout from the attack they’ve suffered, but it will prevent the same damn thing from happening again.

    This guy is right in that the Constitution didn’t account for insider threats.

    2
  18. @JKB:
    Hey, Q Boy, I just saw Hillary sitting with Obama down at the local Pizza Hut, having a large baby flesh and pepperoni, extra cheese.

    You need to dress up in your outfit. You know, the camos. Strap on lots and lots and lots of guns and go deal with it.

    6
  19. Scott F. says:

    @HarvardLaw92:

    It’s largely theater.

    Sure, it’s theater. But, it’s theater designed to illuminate rather than to merely entertain. The 25th Amendment was created for a reason, but as James notes, a large part of it “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.” With Trump’s behavior spiraling down before our eyes, it seems pertinent to at least talk about the mechanisms to deal with presidential disability.

    Of course, this is an administration that has decided that it can ignore all Congressional oversight, so we would expect their like to ignore this commission as well. So while bringing this act up now is more political than legislative, I’d say the politics are pretty deft in this case.

    6
  20. @Daryl and his brother Darryl:

    Meanwhile Trump called off Stimulus negotiations, and then caved, and made a counter-offer.
    Pelosi is playing him like a fat orange piano.

    Now Mitch is saying no way.
    Trump has no leverage and at-risk Senators have no interest in lashing themselves to a sinking ship.

    6
  21. @Scott F.:

    . But, it’s theater designed to illuminate rather than to merely entertain.

    I concur and I think this kind of theater, if we want to stick with the term, is what we need.

    It draws attention to a real issue and the current deficiencies we have in dealing with it.

    7
  22. James Joyner says:

    @Steven L. Taylor: Agreed. When I first saw the headlines yesterday, I thought it was a mere publicity stunt. But this was executed thoughtfully and with a proposal that I think should be implemented.

    @HarvardLaw92: I’ll defer to your legal expertise and this is essentially untested law. But my lay reading of Section 4 would allow the VP to oust the President over his objections with the consent of this commission or a majority of the cabinet and the assent of Congress. I don’t see how impeachment is required.

    4
  23. HarvardLaw92 says:

    @James Joyner:

    The amendment allows the Vice President, with the consent of a majority of the cabinet (or whatever thing Congress cobbles together) to assume the exercise of the powers of the presidency as acting president. It transfers the powers of the office, either temporarily or indefinitely (depending on how far you get into the amendment procedures), but it never transfers the office itself.

    Think of it like a scenario where Queen Elizabeth hypothetically becomes comatose. Charles could be granted the powers of the throne via a regency (which is essentially what an acting president would be) in that situation, but as long as she kept breathing (unless Parliament removes her from office), she’d still be the Queen and Charles would be a caretaker. Not a perfect example, but I think you’ll understand – president in all but title, but not the president. Barring impeachment and conviction, a president remains president unless and until he/she either resigns, hits the term limit, or fails to be re-elected to a second term. If they tried to actually remove him from office under the 25th, it actually would be a coup.

    2
  24. JohnSF says:

    @JKB:

    the administration of the US government and foreign policy is roiled

    Seriously?

    The Speaker of the House of Representatives proposes legislation codifying aspects of the 25th Amendment, and throughout the executive branches people require emergency use of the smelling salts. Possibly a quiet sit down and a nice cup of tea to soothe the nerves.

    Meanwhile, across the world, foreign leaders, thunderstruck by the revelations of possible issues with President Trump’s fitness, recoil in shock, or else sneakily move on with their dastardly plans!

    Give over.

    3
  25. SC_Birdflyte says:

    @Scott F.: While I’m not advocating a shift to a parliamentary form of government, maybe what we need is to replace the 25th Amendment with one that, if a majority of either house of Congress votes a declaration of temporary incompetence on the part of the President, the President can either appear before Congress to show he/she IS competent, or the powers of the President devolve on the Vice President until the President can provide adequate proof that he/she has regained the ability to do the job.

  26. James Joyner says:

    @HarvardLaw92: Yes, that actually accords with the plain text of the Amendment. Which makes sense, come to think of it. If the elected President somehow regained competency, he actually ought to be able to step back into the job.

  27. James Joyner says:

    @SC_Birdflyte: Under that construct, Mitch McConnell could essentially have removed Barack Obama from the presidency.

  28. John430 says:

    We really need some way to have a non-partisan check on the system against a mentally incompetent President.

  29. john430 says:

    @John430: Slipped before I could add: Implement immediately if Biden is elected.

  30. Michael Reynolds says:

    @john430:
    Show evidence of Biden’s ‘incompetence.’ I dare you.

    Then, when you’ve produced whatever evidence you think you have, I’ll go you 10 to 1 on Trump’s incompetence. Camera…Man…Woman…Covfefe. Bring it on.

    2