Last Friday, as the news of President Trump’s COVID-19 diagnosis grew into very pressing questions about the nature and severity of his symptoms, the news cycle became one about the 25th Amendment. A week later, though Trump appears to have largely recovered (at least for the time being), there’s even more talk of the 25th Amendment.
At a Friday press conference, House Speaker Nancy Pelosi and Maryland Democratic Rep. Jamie Raskin announced a new piece of legislation that would create “a commission on presidential capacity to discharge the powers and duties of the office.” Raskin, who wrote the legislation, pointed to language in Section 4 of the 25th Amendment as his constitutional basis for creating the commission:
The new commission would become the “such other body.” It would be made up of eight medical professionals (four each appointed by majority and minority leaders in Congress), and eight former high-ranking executive officers (presidents, vice presidents, secretaries of state and defense, for example), who would be appointed the same way. A final member, appointed by the 16 members, would serve as chairman. Congress would be able to direct the commission to conduct an examination of the president’s fitness. If the commission were to determine him unfit, it would follow all the procedures set out in Section 4 in seeking to remove him.
The obvious political question is whether Pelosi is winking and hinting at bringing up a 25th Amendment proposal right now. She shut down a reporter who tried to go there. Considering the impeachment effort and the general posture of Democrats since Trump was inaugurated, it’s difficult not to interpret Raskin’s bill as being another “arrow in the quiver.”
Pelosi argued that the legislation does not amount to that. “This is not about President Trump,” she said at the press conference. “He will face the judgment of the voters.” She also said, “This is not about any judgment someone has about someone’s behavior. This is about a diagnosis.”
Raskin did say this is about Trump coming down with COVID-19. “The situation has focused everybody’s mind on the need for following through on this suggestion in the 25th Amendment that Congress set up its own body.” Raskin’s further justification was that “the framers of the 25th Amendment knew that you could not always count on the cabinet to act, and so Congress has a role to play.”
In light of current circumstances, it’s hard to imagine that if Trump or any other president were incapacitated, without having transferred power to the vice president under Section 3, that the cabinet would not properly deem him unfit, thus necessitating action by the “such other body.” However, it is easy to imagine a circumstance in which Congress deems a president unfit for duty due to “mental illness or deficiency,” as the legislation lays out, and orders the commission to examine the president. Democrats have had that posture for the last four years.
The one defense that Pelosi and Raskin have that the commission proposal does not amount to a political power play is that enormous barriers to actually removing the president remain even under the new proposal. In order to remove the president, the vice president would have to agree with the commission’s analysis and declare with the commission, to the Senate pro tempore and speaker of the House, that the president is unfit.
Without the vice president, the commission has no recourse. Even with an assenting vice president, if the president challenged the declaration, Congress would need a two-thirds majority to overrule his challenge.
The new 25th Amendment legislation looks like a political play. Either way, a commission would be impotent under nearly every likely political circumstance.
