Did you ever think you would read a title from a mainstream news magazine like this one: How to Remove a Crazy President From the White House (Newsweek, Aug. 1, 2017)? For Newsweek, Jeff Stein reports on the Commission on Presidential Capacity Act, HR 1987, introduced in April by Representative Jamie Raskin (D-Md), a constitutional scholar and law professor. Stein wrote:
Raskin introduced a bill to create a constitutional mechanism for removing a president from office if he were nuts wrote Stein. “Of course, ‘nuts’ wasn’t in the bill; the more genteel language is ‘mentally incapacitated.’ But in the weeks since then, ‘nuts’ has been increasingly whispered as a diagnosis for the 45th president’s behavior.”
Stein opines that the bill has virtually “no chance of passing, of course. For starters, Raskin is a freshman Democrat in a Republican Congress. He has only 27 cosponsors, none of them Republicans. Legal scholars have also dismissed it as unrealistic and ‘premature.’” But this isn’t the only bill introduced in this Congress that strives to provide a constitutional mechanism to remove a sitting president who is temporarily or permanently incapacitated. Rep. Earl Blumenauer (D-Oregon) has introduced HR 2093, the Strengthening and Clarifying the 25th Amendment Act of 2017 to deal with presidential disability. [LLB post]
“or of such body as Congress may by law provide.” Both bills strive to create a constitutional mechanism under Article 4 of the 25th Amendment which states:
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.
Under HR 2093, the Strengthening and Clarifying the 25th Amendment Act of 2017, each former living President and each former living Vice President shall constitute such body to carry out Article 4, except any such individual who has been impeached by the House of Representatives and convicted by the Senate or who is serving as President or Vice President at the time of the declaration of incapacity is made. [LLB post]
HR 1986, the Commission on Presidential Capacity Act, would establish an 11 member commission to carry out Article 4: (a) two members appointed by the majority leader of the Senate; (b) two members appointed by the minority leader of the Senate; (c) two members appointed by the Speaker; (d) two members appointed by the minority leader of the House; (e) two members, one Republican and one Democrat, and each of whom has served as President, Vice President, Secretary of State, Attorney General, Secretary of the Treasury, Secretary of Defense, or Surgeon General; and (f) one member, serving as Commission chair, appointed by a simple majority vote of the 10 other appointed members.
Twitter is full of rumors that unnamed members of Congress, Democrats and Republicans are quietly supportive of using the 25th Amendment as the means to remove President Trump without having to go through the national agony of impeachment proceedings. Creating an Article 4 commission might be more realistic then expecting “the Vice President and a majority of either the principal officers of the executive departments” to decide on their own that the President is not fit to serve the office.
Determining presidential disability. The 25th Amendment offers no constitutional guidance on the standards to be used to determine presidential incapacity. But in Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment, 30 Journal of Law and Politics 97 (2014), [LLB post] Daniel J. T. Schuker offers an approach to understanding, classifying, and assessing cases of presidential disability by distinguishing between (1) persistent or temporary physiological incapacity; (2) persistent or temporary logistical incapacity; (3) persistent or temporary physiological impairment; and (4) persistent or temporary logistical impairment. The article appears to be a good framework for discussing presidential disability under the 25th Amendment when someone other than a sitting president is making that determination. — Joe