It’s Time to Put Some Muscle Behind the 25th Amendment

It’s Time to Put Some Muscle Behind the 25th Amendment

It’s Time to Put Some Muscle Behind the 25th Amendment

Representative Jamie Raskin has long advocated for structures to assess the fitness of presidents. Now House Speaker Nancy Pelosi agrees.


When House Speaker Nancy Pelosi and House Judiciary Committee member Jamie Raskin appeared before reporters Friday and proposed a plan to evaluate the mental fitness of presidents, they were peppered with predictable questions about Donald Trump.

The president’s Covid-19 diagnosis, his increasingly erratic behavior, and concerns about his response to his prescribed medications, including the powerful steroid dexamethasone, made those questions inevitable at a press conference on legislation to clarify how the 25th Amendment works. The amendment was added to the Constitution in 1967 to establish contingencies for circumstances in which presidents die or are physically or mentally incapacitated.

Raskin, a constitutional scholar who was a law professor before Maryland voters elected him to Congress, has long advocated for the establishment of an independent and nonpartisan Commission on Presidential Capacity to Discharge the Powers and Duties of Office. Now, the House Speaker is talking up Raskin’s legislation that would act on the section of the 25th Amendment that empowers Congress to establish a permanent “body” that, with the concurrence of the vice president, can declare that the president is “unable to discharge the powers and duties of his office.”

But in the era of Trump, everything is always about Trump. And with the presidential election less than a month away, the questions about whether Pelosi and Raskin were merely trolling a troubled president framed the discussion even after the speaker explained, “This legislation applies to future presidents. But we are reminded of the necessity of action by the health of the current president.”

So be it.

If Trump’s irrational presidency, and the politics surrounding it, have brought us to the point where we might finally resolve fundamental questions about presidential incapacity and succession, that’s a good thing for the future. This country leaves too many constitutional questions unanswered until crises develop—and that, Raskin reminds us, is dangerous.

“Look, we understand that, in politics, people point fingers of blame back and forth,” the congressman said Friday. “But the issues raised are of such gravity and central importance to the nature of our government that we’ve got to think of this in constitutional terms. This is why we need to set up an institution composed in a bipartisan fashion, in bicameral fashion, that will be able to make judgments, whether it is five months from now, five years from now, 50 years from now, whatever it might be. We’re living in an age of a lot of chaos—and I want to say I appreciate what the speaker has to go through on a daily basis dealing with the chaos of politics, which has been been made especially intense recently—and I appreciate her seeing that we need to create some constitutional and institutional foundations for dealing with the chaos. Our forebears, who wrote the 25th Amendment, gave us the tools we need to deal with these kinds of crises.”

Trump’s presidency has been so chaotic that discussions of invoking the 25th Amendment have arisen numerous times during his tenure. His recent Covid diagnosis has brought that conversation back, as he’s engaged in grandiose and irrational behavior and made pronouncements so contradictory that the commander in chief often seems to be arguing with himself. It makes sense to talk about the 25th Amendment at a time when Trump is calling into right-wing talker Rush Limbaugh’s radio show and threatening in the midst of a rambling discourse on the Iran nuclear deal, “If you fuck around with us, if you do something bad to us, we are gonna do things to you that have never been done before.” In fact, Trump’s two-hour call to Limbaugh on Friday was so unfocused, and at times delusional, that the host was actually trying to wind it down with plaintive hints to the president: “I know you’ve got a jam-packed day left on your schedule…”

But anyone who thinks that Raskin is just jumping on the 25th Amendment bandwagon does not know enough about the longtime American University’s Washington College of Law professor who now serves as the vice-ranking member of the House Judiciary Committee. Since 2017, he has been making a compelling case for consideration of how best to utilize the 25th Amendment—which outlines procedures by which “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, 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…”

Raskin has calmly and consistently explained that “the 25th Amendment, adopted in 1967, does not leave this judgment solely to the Cabinet.”

“Under the 25th Amendment, the Vice President and a majority of the Cabinet or the Vice President and a majority of ‘such other body as Congress may by law provide’ can determine that the President is—for reasons of physical or mental incapacity—’unable to discharge the powers and duties of his office,’” the congressman from Maryland said in 2018. “Because an unstable President might fire his own Cabinet, Senator Birch Bayh, who sponsored the 25th Amendment, wanted to empower Congress itself to set up an independent ‘body’ to act with the Vice President in the event of presidential inability.”

Three years ago, Raskin sponsored a bill, HR 1987, the Oversight Commission on Presidential Capacity Act, which sought to have Congress define the “body” that is outlined in the 25th Amendment.

That legislation proposed to establish a permanent standing body, which would be available to act during any presidential administration. As Raskin explained, “this body will consist of a panel of elder statespersons (former Presidents, Vice Presidents, Secretaries of State, Attorneys General and so on), physicians, and psychiatrists—all of them selected in a scrupulously bipartisan and bicameral manner by Congressional leadership. The body will select an eleventh member as the Chair. It will only act to conduct a medical examination of the President at the explicit direction of Congress. And Congress always has the last word under the terms of the 25th Amendment.”

“Congress has a constitutional duty under the 25th Amendment to define the process by which a judgment of presidential incapacity can be made if circumstances render such a judgment necessary, in this administration or any other,” Raskin explained two years ago, when he observed that getting clarity with regard to the amendment was of “pressing and enduring importance to the security of our nation.”

Congress did not step up when Raskin raised the issue in 2017 and 2o18, as it should have. So Raskin is back to reintroduce his legislation, and he is now appearing at the side of the speaker of the House to speak a necessary truth: “The 25th Amendment was adopted 50 years ago, but Congress has never set up the body it calls for to determine presidential fitness in the event of physical or psychological incapacity. Now is the time to do it.”

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