October 9, 2020 – Today Speaker of the House Nancy Pelosi and Maryland's own Representative Jamie Raskin introduced the Commission on Presidential Capacity to Discharge the Powers and Duties of Office Act. This legislation is designed to create the process called for in the 25th Amendment to the Constitution to enable Congress to help ensure uninterrupted executive branch leadership.

The 25th Amendment to the Constitution, passed by Congress July 6, 1965 and ratified February 10, 1967, was created to address the need for clarity in presidential succession in the aftermath of the JFK assassination. The amendment is comprised of four sections with the first three fairly straightforward.

Section 1 states that “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President”. This, of course, has occurred in several past situations such as Lyndon Johnson succeeding John Kennedy after his death and Harry Truman succeeding Franklin Roosevelt after his death but, with the 25th Amendment is captured in the Constitutional. Section 2 states “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress”. Selecting Gerald Ford to replace Spiro Agnew upon his resignation as Vice President and, then, Nelson Rockefeller to succeed Gerald Ford when he succeeded Richard Nixon after Nixon's resignation immediately come to mind.

Section 3 states “Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President”. This section was used during Ronald Reagan's hospitalization after the Jon Hinckley assassination attempt when Reagan temporarily transferred presidential power to Vice President Bush.

So far so good, but the more somewhat controversial section is Section 4. This section is intended to cover the circumstance in which the President becomes incapacitated or otherwise unable to carry out his duties but no formal transfer of responsibility occurs. Specifically, the section calls for “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 added), 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 immediately assumes 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 of 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”.

Section 4 goes on to provide language to cover the situation in which there is a dispute between the President and those declaring his inability to carry out his duties ultimately calling for Congress to step in and serve as arbiter. However, that is not the portion of Section 4 that is being addressed with additional legislation. While Section 4 of the 25th Amendment refers to “such other body as Congress may by law provide” no such body has ever been established leaving the responsibility to determine when a President is no longer able to carry out his duties to the President's own hand-picked cabinet officers.

The Commission on Presidential Capacity to Discharge the Powers and Duties of Office Act is intended to address this omission by creating the very “body” Congress is tasked by the 25th Amendment to create. The proposed legislation specifically calls for the establishment of a congressionally appointed bi-partisan commission of physicians and top leaders who could evaluate the president’s health — both mental and physical — and work with the vice president on a transfer of power.

“For the security of our people and the safety of the Republic, we need to set up the ‘body’ called for in the 25th Amendment,” Raskin said. “The president can fire his entire Cabinet for asking the same question tens of millions of Americans are asking at their dinner tables, but he cannot fire Congress or the expert body we set up under the Constitution."

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