The infamous 25th amendment to the Constitution sets out how a seated president can be temporarily deprived of his powers if the vice-president and a majority of cabinet secretaries declare that he is unfit for service.
Now House Speaker Nancy Pelosi held a press conference on Friday to discuss the matter. However, it was not really an attempt to overturn President Donald Trump's powers.
Rather, Pelosi promoted a bill sponsored by Rep. Jamie Raskin (D-MD) that, if the bill was signed, would create a new bipartisan commission which, if the Vice President agrees, could declare the President incapacitated.
Describing this as a general reform proposal for good government for the future, Pelosi said it was "not about President Trump", who she said would "face the judgment of the voters". In fact, there is no chance this law will be passed or signed into law this year. Right now it's just an idea.
But in the context of the Trump era, holding a press conference on the 25th Amendment is like waving a red flag in front of a bull. Indeed, Trump soon responded with a tweet baselessly accusing Pelosi of using the change to replace a later President Biden with Vice President Kamala Harris.
Mad Nancy Pelosi is considering the 25th amendment to replace Joe Biden with Kamala Harris. The Dems want this to happen quickly because Sleepy Joe is no longer there !!!
– Donald J. Trump (@realDonaldTrump) October 9, 2020
What would that bill actually do?
As discussed many times in the Trump era, Section 4 of the 25th Amendment allows the Vice President and a majority of Cabinet Secretaries to temporarily deprive the President of his powers if they declare his inability to serve in office. The amendment does not define what “incompetence” means, but it has often been discussed in relation to physical disability, dementia or even just erratism. (The president can also struggle to regain his powers if he does not think he is fit. It would take a two-thirds vote from both the House and Senate to remove him from circulation.)
However, the 25th amendment says that it does not necessarily have to be the cabinet that is calling for the President's incompetence. It is said that the vice president can also work with "another body as the law provides by the Congress" in order to deem the president unfit and to take over his powers.
But Congress never created that other body. That is exactly what this Bill by Rep. Raskin would do: it would create the "Commission on the President's Ability to Perform the Powers and Duties of the Office." (The bill isn't new – Raskin first introduced it in 2017.)
According to Raskin's bill, this commission would have 17 members. Nine of these members would have to be physicians, and at least four of these nine would have to specialize in psychiatry. The other eight members will be former senior officials of the executive branch (former presidents, vice presidents, top cabinet secretaries or surgeons general).
Whoever chooses them, Democratic Congress leaders can fill eight of the seats, and Republican Congress leaders can fill the other eight seats. Then the majority of those 16 nominated people must somehow choose the final nominated one who will be the chairman of the commission.
That commission could then be authorized by Congress to "conduct an examination of the president to determine whether the president is mentally or physically incapacitated". Then they would have to report their results to Congress.
Finally, the Vice-President would have to say whether he agrees with the Commission's findings or not. If he agrees, the president would temporarily lose his powers and the vice-president would become acting president. If he doesn't agree, the president stays on the line.
The point of all of this would be to remove that power to decide on the President's ineptitude from a group of mostly medical professionals from a group of mostly medical professionals who may be reluctant to oppose him (and whom he might fire).
Still, most of these medics would be appointed by the leaders of both parties (currently Mitch McConnell, Kevin McCarthy, Chuck Schumer, and Pelosi) so clearly politics would not be removed from the process. That means the very high bar for depriving a seated president of his powers would remain pretty high.
Perhaps the hardest part of all of this, however, would be convincing a President of the United States to sign a bill that would create a new way in which he could be stripped of his powers.
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