Speaker of the House Nancy Pelosi teased the media on Thursday during her press conference, saying they planned to talk about the 25th Amendment on Friday.

The 25th Amendment lays out presidential succession if a president is incapable of fulfilling his duties. 

There are two ways this can happen, voluntarily or involuntarily. 

Section 3 of the 25th Amendment outlines the process if the president voluntarily does this, making the vice president the United States acting president. It’s temporary, generally done when the president is going under anesthesia for surgery or something of that nature.

It reads, “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.”

Then you have the involuntary route spelled out in section 4 of the 25th Amendment. 

It reads in part, “Whenever 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, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

The president can appeal his case. 

“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 or of such other body as Congress by law may 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.” 

This provision in the Constitution provides the ability to remove a president from power who say that due to some injury, illness, or substance abuse, no longer has the mental capacity to carry out their duties. For obvious reasons, that would be very dangerous for the country if he or she were to continue in office. 

On Friday morning, along with Pelosi, U.S. Rep. Jamie Raskin, D-Md., introduced a bill that would create an “independent, nonpartisan Commission on Presidential Capacity to Discharge the Powers and Duties of Office.” 

Raskin said the bill would also empower Congress in emergency situations to pass a concurrent resolution requiring the Commission to examine the President, determine his/her ability to execute the office’s powers and duties, and report its findings to Congress. If presidential incapacity exists, the Vice President would immediately assume the role of Acting President.

“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,” said Raskin.

How would the commission be selected?

The Speaker of the House, House Minority Leader, Senate Majority Leader, and Senate Minority Leader would each select four physicians and four psychiatrists to serve on the Commission. Additionally, each chamber’s Democratic and Republican leaders will select, by party, four retired statespersons (e.g., former Presidents, Vice Presidents, Attorneys and Surgeons General, Secretaries of State, Defense, and Treasury) to serve. The 16 appointed members then select a 17th member, who acts as the Chair of the Commission. None of the members can be current elected officials, federal employees, or members of the active or reserve military to avoid conflicts of interest.

Members would serve terms of four years. 

This bill is an awful idea. 

First, Raskin makes it sound as if Congress were mandated to create such a body. It is not. There already is a permanent body that makes these kinds of determinations – the President’s cabinet. 

Second, removing a president from power this way should not be easy. Cabinet members are loyal. That’s not a bad thing. If a majority of a president’s cabinet determines a problem, then there is probably a problem. 

Also, the 25th Amendment REQUIRES the vice president’s participation, under this bill it wouldn’t be required.

Third, it creates an unconstitutional check on the executive branch. Congress appoints the members, Congress can require them to investigate and report their findings, and then Congress will vote on those findings. Under the 25th Amendment, Congress is the ultimate arbiter, and it requires a two-thirds majority vote. Under this bill, Congress can also initiate the process with a majority vote. No thanks. 

This bill reeks of partisan politics. The only co-sponsors are Democrats. Also, Pelosi said during Friday’s press conference, “This is not about President Trump. He will face the judgment of the voters, but he shows the need for us to create a process for future presidents.”

So can we expect Congressional Democrats to initiate this process should Trump be reelected? One also wonders if they also want a way to remove Vice President Joe Biden should he win. There are concerns about his mental faculties. I don’t believe Democrats are being transparent about this, but should Americans elect him as our next President, removing him should be a process initiated by his cabinet, not Congress.

Fourth, I’m tired of these “independent” commissions and boards; none are constitutional as far as I’m concerned. They are not directly accountable to Congress or the executive branch. We’ve seen plenty of examples of “nonpartisan” commissions acting in partisan ways. 

We have gone fifty years without such a commission; we can go fifty more. 

Fortunately, this bill will go nowhere.

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