Bloomberg Law
Oct. 15, 2020, 8:00 AM

A Presidential Disability Commission Under the 25th Amendment

Brian C. Kalt
Brian C. Kalt
Michigan State University College of Law

House Speaker Rep. Nancy Pelosi (D-Calif.) and Rep. Jamie Raskin (D-Md.) introduced a bill on Oct. 9 to establish a commission on presidential capacity. This legislation has no chance of passing in the current session, but combined with President Trump’s recent hospitalization, Pelosi’s and Raskin’s announcement focused attention on an obscure part of Section 4 of the 25th Amendment that the public would do well to understand.

The proposed legislation would tweak the procedure within Section 4 for declaring the U.S. president unable to discharge the duties of the office, but the procedure would still require many other steps weighted in favor of the president, and might even increase incentives for keeping an impairment secret.

Section 4 of the amendment, ratified in 1967 and which never has been invoked, provides that the vice president and Cabinet can declare the president “unable to discharge the powers and duties of his office,” at which point the vice president becomes acting president.

Later, if the president declares that “no inability exists,” the vice president and Cabinet have four days to disagree, during which time the vice president remains acting president. If they do disagree with the president, the dispute goes to Congress. If two-thirds majorities in the House and Senate vote within 21 days that the president is unable, he remains sidelined. Otherwise, he retakes power.

Creating a Body to Take Over the Cabinet’s Role

So how does Raskin’s proposed commission fit into this process? When Section 4 gives the Cabinet its role (calling it “the principal officers of the executive departments”), it says that Congress can enact a law to designate some “other body” to take over the Cabinet’s role in the Section 4 process.

The Raskin bill is an attempt to do just that. Raskin’s “other body” would be a 17-member commission, appointed by a bipartisan process. Eight members would be doctors appointed by the speaker, the House minority leader, and the Senate majority and minority leaders, each of whom would appoint one psychiatrist and one other physician. Eight other members, appointed the same way, would be former high-ranking executive branch officials from each party.

These 16 members would jointly select a 17th member to serve as chair. Raskin’s bill also would empower Congress to request that the commission examine the president and report on whether he is “unable.”

The commission would have no power by itself to sideline the president. Section 4 would still require the vice president to sign on to any Section 4 action. Moreover, if the president declared himself able, Section 4 would still restore his powers unless not just the commission, but also the vice president and congressional supermajorities disagreed with the president.

Impairments the Proposal Is Meant to Address

As already mentioned, Raskin’s bill would not be enacted by this Congress. If it passes in a future Congress and avoids a veto, moreover, it would face constitutional challenges because of the role it gives Congress in selecting and directing the commission.

Nevertheless, it is worth considering the problems that Raskin is addressing here: First, the Cabinet is naturally reluctant to move against its boss. Second, even if a Cabinet were inclined to declare a president “unable,” it might be unqualified to make a medical judgment.

Section 4’s authors knew that the Cabinet would tend to be loyal to the president—that was one of the reasons they gave the Cabinet its role. Section 4 was meant to allow presidential power to pass swiftly and certainly when the president is completely incapacitated—such as when the president is in a coma.

It does not require a medical degree to conclude that a comatose president is unable to discharge his powers and duties. But in less severe cases, when the president is well enough to declare himself able, Section 4’s authors wanted to protect the president’s position. Putting the vice president and Cabinet in charge was one way that Section 4 raises the bar high.

Raskin’s proposal is directed at these less-severe cases. Historically, presidents have been impaired in significant ways short of total incapacity. For instance, President Calvin Coolidge fell into a deep depression after his son died. He stopped working almost entirely and slept as many as 15 hours a day. According to several historical accounts, President Nixon was sometimes too drunk to respond to urgent situations; at other times he was so drunk that his subordinates ignored his orders.

A commission like Raskin’s might determine that a president like Coolidge or Nixon is “unable” and recommend invoking Section 4. The commission might also consider other ambiguous situations, such as a president experiencing serious mood changes or significant forgetfulness. Where the Cabinet might want to avoid embarrassing or undermining the president, Raskin’s commission might not be as reluctant.

But setting up the commission is one thing; ensuring it is privy to the president’s actual condition is another thing altogether. With rare exception, the history of presidential impairment in the United States has been one of concealment and spin. There is no reason to think that enacting Raskin’s bill would lead presidents suddenly to embrace transparency. If anything, the opposite is true: It would heighten the incentives presidents have to keep their weaknesses as hidden from the public as possible.

Raskin’s commission also would not change Section 4’s basic architecture: In cases where the president insists that he is able, Section 4 would still stack the deck heavily in his favor. Even if the commission insists that the president is medically impaired, the vice president and two-thirds of the House and Senate would need to agree that sidelining the duly elected president is the right thing to do.

By putting the decision in the hands of the vice president and Congress, Section 4 makes the president’s status a political question. The commission could force the issue of the president’s capacity to the top of the agenda, but it cannot change this fundamental reality.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Brian C. Kalt is a law professor at Michigan State University and the author of “Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment.”

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