House Unveils First-of-Its-Kind Plan to Deal With an Incapacitated President

President Donald Trump works in his conference room at Walter Reed National Military Medical Center in Bethesda, Md., on Oct. 3 after testing positive for Covid-19. (Joyce N. Boghosian/The White House)

WASHINGTON (CN) — Pulling one of the last arrows in a quiver carried by Democrats increasingly disarmed of late by President Donald Trump’s behavior since his Covid-19 diagnosis, House Speaker Nancy Pelosi on Friday announced legislation triggering the first steps of reviewing a president’s fitness for office as provided by the Constitution’s 25th Amendment.

Announced by the speaker and the bill’s lead sponsor, Representative Jamie Raskin, the resolution calls for the creation of a nonpartisan commission that Raskin described in interview Thursday night as not only altogether necessary to meet the moment but inherent to the Constitution’s guidance for managing unpredictable leaders in uncertain times.

“The body we are creating — this commission on presidential capacity — is called for and it is precisely what is contemplated in the Constitution,” the Maryland Democrat said.

Since both the House and Senate must pass the resolution to create the commission, it faces an uphill if not impossible legislative fight with the Republican-controlled Senate almost entirely in lockstep with President Trump.

But with 25 days to go until Election Day — and possibility ahead of Trump getting elected and Democrats flipping the Senate — the bill announced Friday is more like insurance than some Democratic flight of fancy or constitutional pipe dream. 

“This stays on the table,” Raskin said Thursday, explaining that even if the act passes as expected in the House and dies on arrival in the Senate, the bill stays passed and in place when a new Congress arrives next year. “The whole purpose of the 25th Amendment was to create a body that would be there in the event of an emergency. You can have any kind of emergency. But there are 535 members of Congress and only one president. The authors wanted to make sure we paid attention to the physical and mental stability of the president so would have continuity and stability in government.”

A state of emergency is precisely where the United States has been for the last seven months, each state in the union caught in various phases of uncertainty as the Covid-19 pandemic continues to infect huge numbers and kill, at present, roughly 1,000 people a day.

Then last Friday, the President tested positive for the virus. Abruptly hospitalized, and with mixed messaging on his status from his physician Sean Conley and chief of staff Mark Meadows, respectively, questions of national security and concerns over constitutional crises were thrown into sharp relief.

Ever sharper, however, were some of the unsettling conclusions pieced together through official administration statements and widespread reporting, chief among them, confirmation of Trump’s failure to warn 2020 opponent Joe Biden that, just ahead of their first presidential debate, he was likely exposed to the virus following direct contact with Covid-19-positive White House adviser Hope Hicks.

Freshly discharged from Walter Reed Military Medical Center after a 72-hour stay where he was treated with powerful drugs including steroids, Trump issued frequently rambling video messages on Twitter and a series of confusing posts directing that pandemic-relief talks, long at an impasse in Congress, be killed. He revived talks within hours and on terms that Speaker Pelosi previously offered and saw rejected by Trump weeks before.

Speaker of the House Nancy Pelosi, D-Calif., questions President Donald Trump’s fitness to serve following his hospitalization for Covid-19, during a Friday news conference at the Capitol in Washington. (AP Photo/J. Scott Applewhite)

“A president’s fitness for office must be determined by science and fact,” Speaker Pelosi said during a press conference introducing Raskin’s legislation on Friday. “This legislation applies to future presidents but we are reminded of the necessity of action of the health of the current president. With this bill, Congress honors its oath to defend the Constitution and protect the American people.”

While politicians, voters and some of Trump’s staunchest critics have called for an invocation of the 25th Amendment before, Speaker Pelosi underlined repeatedly that she wants the American voters to decide whether Trump should have another term.

“There’s been a call, why not execute the 25th Amendment? That’s not what we’re saying,” the California Democrat said. “We’re saying let Congress exert the power that the Constitution gave it.”

Pelosi also emphasized that the legislation isn’t about casting judgment on “someone’s behavior.” The committee would be formed for a very specific reason.

“This is about a diagnosis, a professional medical diagnosis,” Pelosi said.

Under Section 4 of the 25th Amendment, Congress is empowered to establish a permanent “body” that, with authorization of the acting vice president, can declare that the president of the United States is unable to discharge the power of his office. 

Though put into law over 50 years ago, Section 4 adoption has never been used to determine the fitness of a president’s physical or mental incapacity.

According to the bill, the commission would be nonpartisan and made up of 17 members. Four members would be physicians and four psychiatrists that would be selected by Pelosi, House Minority Leader Kevin McCarthy, and Senate Majority Leader Mitch McConnell and Senate Minority Leader Chuck Schumer. 

It would also feature eight former high-ranking officers of the executive branch to include either a former president, secretary of state, attorney general, secretary of the Treasury or Defense Department, or the U.S. surgeon general. One of each would be selected by Republican and Democrat leadership in the House and Senate.

The 17th member, or the chair of the commission, is selected by the appointed members, and, to avoid a conflict of interest, the legislation is clear that none of the members can be “current elected officials, federal employees, or members of the active or reserve military.” 

Known as the CPC Act, the bill outlines rules for expedited processes in the event the commission is called upon to act, like in the instance of an abrupt, all-consuming illness, accident or death.

Once a concurrent resolution is introduced in Congress to activate the commission, both the Senate and House Judiciary chambers will have just two days to act or see the bill sent to the floor for debate and a vote. Once passed on one side, the bill is transferred to the other and the same process unfolds. 

If adopted by the full Congress, the commission has just 72 hours to examine the president and then 72 hours more to submit its findings in a final report.

“If a majority of the commission and vice president finds that the president is unable to discharge the powers and duties of the office, it may submit such information to Congress and the Vice President shall immediately step in as Acting President,” the legislation states. 

But if the vice president were to disagree with the conclusions reached in the final report, he or she must do so in writing.

If incapacity is determined, the president still retains the right to declare “no disability exists.” This would trigger a new four-day deadline for a second letter to be issued to Congress by the commission that the president is unable to discharge his duties. 

A 21-day timeclock goes into effect and at its end both chambers must vote on what the president’s fate will be. A two-thirds majority must be reached to successfully invoke this never-before-used fourth section of the 25th Amendment.

The amendment has been invoked just six times, three of those instances done under the amendment’s third section, which is tied only to matters of presidential succession. For instance, former Presidents Ronald Reagan and George W. Bush each invoked it temporarily as they underwent medical procedures, delegating authority to their vice presidents.

“There’s never a good time to [form the commission] because it’s seen just in its local circumstance as opposed to the need to have this institutionally,” Raskin said Friday. “I would say, today’s situation has focused everybody’s mind on the need for following through on this suggestion in the 25th Amendment that Congress set up its own body. During the age of Covid-19 where a lot of government actors have been afflicted by it, we need to act.”

An incomplete list of people who attended a Sept. 28 event at the White House that became a superspreader for Covid-19.

Reflecting on the history of the amendment’s use, Raskin pointed out there were times it should have been used but was disturbingly not.

One of those nights was almost exactly 46 years ago when then President Richard Nixon “suffered a temporary impairment both physiological and psychological” that was so severe, then-Secretary of State Henry Kissinger questioned whether Nixon was able to properly function at all.

The same evening of Kissinger’s assessment, a crisis in the Middle East erupted that prompted Kissinger to call members of Nixon’s cabinet — sans the president — into the Situation Room and raise the worldwide military alert to DEFCON 3.

The amendment could have also prevented first lady Edith Wilson from ostensibly acting outside of her own constitutional powers when in October 1919, following President Woodrow Wilson’s paralyzing stroke, she stewarded the country until the end of his term, hidden from the public view. 

The commission is rare in that it is the only section of the 25th Amendment that has never been used.

Trump, hours before the announcement, took to Twitter writing irate insults at Speaker Pelosi, long a staple of Trump’s White House tenure.

The bill does not currently have any Republican sponsors but Raskin said Thursday he hopes that would change.

“We’re living in a time of tremendous volatility and uncertainty. And I would hope that we could agree across party lines that we need to make sure the president is capable of executing the powers and duties of the office,” Raskin said. “That’s what the 25th Amendment is all about. I hope that the Senate and the Republicans will do their duty.”

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