The Slatest

The 25th Amendment Needs an Update

Rep. Jamie Raskin explains why he thinks we need a new commission to determine when a president is incapacitated.

Trump, wearing a mask, waves from the back seat of a car.
What happens if Trump has to go on a ventilator? Alex Edelman/AFP via Getty Images

Donald Trump’s COVID-19 infection and subsequent hospital stay have elicited sudden and urgent interest in the 25th Amendment, a provision that outlines procedures for succession should the president become incapacitated or otherwise unable to fulfill the duties of the office. The amendment, added to the U.S. Constitution in 1967 after John F. Kennedy’s assassination, spells out a few different ways that authority can move from the president to the vice president in times of crisis. Section 3 stipulates procedures for a president to voluntarily transfer their powers to the vice president and then reclaim them at a later date. This has typically occurred when a president is undergoing a medical procedure; for example, George W. Bush handed power over to Dick Cheney in 2002 and 2007 before going under anesthesia for a colonoscopy. Section 4, which has never been invoked, spells out how the vice president and a Cabinet majority can initiate a power transfer without the president’s consent if they attain a two-thirds majority vote in both chambers of Congress. Such a step may be necessary if a president suddenly becomes unconscious or faces some other debilitating health emergency.

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In 2017, Maryland Rep. Jamie Raskin introduced a bill that would supplement the 25th Amendment by creating a congressionally appointed commission consisting of physicians and senior leaders that could assess a president’s mental and physical condition and also work with the vice president to initiate a power transfer. Section 4 dictates that the vice president seek to assume power either with the support of the Cabinet or with “such other body as Congress may by law provide.” Congress had never moved to establish such a body, but Raskin, a Democrat, believes it’s past due. He expects to release an updated version of the bill this week. I spoke with the congressman on Saturday to get his thoughts on the 25th Amendment and Trump’s condition. The transcript of our conversation has been condensed and edited for clarity.

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Aaron Mak: What do you think the 25th Amendment says about how we should be thinking about the president’s illness right now?

Rep. Jamie Raskin: The 25th Amendment places a premium on political stability and continuity. It might’ve been wiser for the president to make the decision when he first got the diagnosis to temporarily transfer powers over to the vice president. That’s accomplished by letter, and then the president can revoke it by letter whenever he wants as well. At least as of now he has not decided to do that. That does create the possibility that if the president takes a dramatic turn for the worse, God forbid, then the vice president and a Cabinet majority, or vice president and a congressional body appointed for these purposes, would have to act. The standard is whether the president can execute the powers and duties of office or not. Someone who has mild symptoms can execute the powers and duties of office, but someone who is on a ventilator obviously cannot. Judgment calls need to be made all along the spectrum.

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Have you thought about what it might mean to be incapacitated when it comes to COVID-19? At what stage in the illness do Pence and the Cabinet really need to considering invoking Section 4?

The 25th Amendment defines presidential inability as the president being unable to successfully execute the powers and duties of the office. Now, the presidency depends upon massive delegation of responsibility. But ultimately the president has to be of sufficiently sound mind and body that he can make important judgments relating to the execution of the laws. Again, we’re on a continuum. A president who has the equivalent of a cold or a light flu can still make executive decisions. At the other end of the spectrum, a president who is unconscious, intubated, or on a ventilator is going to find it impossible to make the judgements necessary for effective executive branch decision-making. Then there might be closer-call judgments all along the way. That’s why you need something like an independent body that would have the authority to send in the doctors to make various judgments about the physical, mental, and cognitive state of the president.

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Are there any ambiguities in the 25th Amendment that could leave us unprepared to deal with a president who has COVID-19?

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Because these judgments are so fine-grained and complex, the 25th Amendment depends on an exacting legal architecture. No president can be removed against his or her will without the consent of the vice president and then two-thirds of Congress essentially to determine that there’s incapacity. That’s a pretty tough procedural check. It’s always difficult to determine what dusk is, but we know the difference between day and night.

You’ve proposed creating a commission that could work with the vice president to invoke Section 4. What could such a commission have been doing this weekend while Trump was in hospital?

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A reason to have such a body is that there would be medical authorities and wise government officials caucusing to make those decisions. You go back and look at H.R. 1987, which was the version that I drafted in the last Congress, and you’ll find that the body would have the authority to conduct an exam of the president. The body could request a complete physical checkup, for example.

Why can’t the Cabinet just take care of this COVID-19 situation, instead of the commission?

The authors of the 25th Amendment wanted to make sure that all of the decision-making did not rest exclusively in the executive branch. … We can see from the Trump presidency the wisdom of creating a congressional body as well as having an executive body to consider the situation. The president exercises a powerful hold over his Cabinet and over the vice president. That is not necessarily conducive to the best decision-making. It might not be a problem, but it could be. Having an independent, bipartisan, congressionally arranged body would allow for effective action or at the very least a second opinion about the situation. The vice president himself might be reluctant to initiate a temporary transfer of power to himself, but an outside body might be less reluctant to say it is clearly indicated.

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Has the coronavirus affected how you think about this bill as you’re in the process of tweaking it? And how are you making sure that the bill isn’t just reacting to the pandemic but also equipped to handle other sorts of crises that might occur in the future?

I was besieged by calls by colleagues [Friday] saying, “We need to bring your bill back.” … The main thing you want is to create sufficient flexibilities for the commission to act effectively while you also have the background constitutional and statutory checks to make sure that it’s not being exploited for political reasons. The Constitution kind of takes care of it by simply saying you need a two-thirds vote in the House and the Senate to remove a president who is protesting his own capacity to act. It’s well-designed from that perspective because it’s a more difficult standard than impeachment. There’s no way that you would ever get a political drive to do this because you would need two-thirds in the House rather than just a majority vote, which is the impeachment standard. I think there’s wisdom in the way the procedural safeguards have been built into it.

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This is an exceedingly modest measure that is totally contemplated by the Constitution. It’s just a shame that it wasn’t done decades ago by another Congress. In politics, we so often react to an immediate crisis, and it’s very hard to get people to think institutionally outside of the context of a crisis. But then when the crisis comes, people are thinking it’s all political. We have to try to show a little bit of the vision and the humanity of the founders of the original constitution and of the 25th Amendment, which contains a lot of wisdom.

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