Although House Speaker Nancy Pelosi claimed earlier this month that President Donald Trump is “in an altered state right now,” she is the one who appears to be in an “altered state” if she thinks she can use congressional authority under the 25th Amendment to remove the president from office.
It seems that having failed to remove Trump through the impeachment process, Democrats led by Pelosi now want to try a different method.
Pelosi claims that new legislation she is backing, which would give a congressional commission authority to determine if a president is incapable in its “opinion” of carrying out his duties, is “not about President Trump.”
No, this “legislation applies to future presidents,” Pelosi said, although she added that she is taking this action because of the “health of the current president.”
That is a revealing comment since, despite Trump’s COVID-19 diagnosis, there is no evidence that he has been physically or mentally disabled from carrying out his duties. The issue here is that Pelosi and her Democratic colleagues don’t like the way Trump is carrying out those duties.
This blatantly political move raises the issue of what, exactly, the 25th Amendment is—and what power Congress has under it. Can it be used to remove a president elected by the American people?
The 25th Amendment, ratified in 1967, outlines what happens if the office of the presidency becomes vacant because the president is removed (through impeachment), dies, resigns, or is temporarily or permanently “unable to discharge the powers and duties of his office.”
As the Heritage Foundation Guide to the Constitution explains, the amendment was adopted because the original presidential succession clause contained in Article 2, Section 1 of the Constitution was ambiguous. It did not define what the meaning was of the “inability” of a president to discharge his duties or who makes that determination.
Did the vice president who succeeded a president become president for the rest of the presidential term? Or was he merely the “acting president?” This important issue was not addressed in the Constitution before the adoption of the 25th Amendment.
The 25th Amendment also provides that if the office of the vice president becomes vacant, the president nominates a new vice president, who can take office after being confirmed by both the House and Senate.
This procedure was used when Vice President Spiro Agnew resigned in 1973 and was replaced by then-House Minority Leader Gerald Ford. It was used again in 1974 when Ford became president following the resignation of President Richard Nixon and nominated former New York Gov. Nelson Rockefeller to become vice president.
Section 3 provides for the vice president to take over as “Acting President” if the president sends a “written declaration” to the Senate and the House that “he is unable to discharge the powers and duties of his office.”
The vice president remains the acting president until the president sends notice to the Senate and House that he can once again assume his role as president.
This provision has been invoked three times—once by President Ronald Reagan and twice by President George W. Bush—when the president handed the reins of power temporarily to the vice president while undergoing a minor medical procedure that required general anesthesia.
Section 4 is the provision of the amendment under which Pelosi is attempting to assert congressional authority. It provides that when the “Vice President and a majority of either the principle officers of the executive departments or such other body as Congress may by law provide” send written notice to the Senate and the House that the president is “unable” to do his job, the vice president shall become the acting president.
The president can reclaim the duties of his office if he sends written notice that he is capable of being president, unless the same group—the vice president and a majority either of his Cabinet or some other body set up by Congress—disagrees within four days.
If that conflict arises, Congress has to assemble within 48 hours and has 21 days to decide who is right. It takes a two-thirds vote of both houses of Congress to override the president’s assertion that he can once again resume his duties as president.
The bill Pelosi is supporting was drafted by Rep. Jamie Raskin, D-Md., and has 38 co-sponsors, many of whom have expressed virulent opposition to Trump.
H.R. 8548, if enacted, would establish the “other body as Congress may provide” in the form of a 17-member “Commission on Presidential Capacity” appointed by the leadership of Congress.
The commission would be given the power to authorize medical examinations “to determine whether the President is mentally or physically unable to discharge the powers and duties of the office” when so directed by a resolution passed by Congress, and to file a report giving its opinion on the capability of the president.
However, Congress has no constitutional authority to force the president to undergo a medical examination.
Even if this commission were to believe that the president was unable to do his job, it would still need the concurrence of the vice president in order to remove the president, even temporarily.
There is no reason to believe that such a commission would be in a better position to judge the president’s ability to carry out his duties than the members of the president’s own Cabinet who work with him.
The fact remains that Section 4 of the 25th Amendment would not be invoked unless something happens—like a heart attack or a stroke—that actually incapacitates the president.
Contrary to what some liberals seem to believe, the 25th Amendment—as professor John Feerick explains in the Heritage guide—was not intended to be used to “cover political and policy differences or poor judgment, incompetence, laziness,” or other such issues or criticisms that a president’s political opposition may have over his conduct as president.
The amendment was also not intended as a substitute for an unsuccessful attempt to remove a president through the impeachment process.
There is no need to change the current procedures that already exist under the 25th Amendment. This bill is nothing more than a political stunt and a waste of time.
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