Opinion: America needs a 25th Amendment Commission

In recent days, the country has been transfixed by a flurry of leaks , conflicting news reports and public statements regarding whether President Joe Biden should remain the Democratic Party’s nominee for president in the 2024 campaign. Some Democrats support him, while a growing number are signaling that they no longer think he can win against former President Donald Trump. Trump’s campaign, and doubtless many other Republicans, are seemingly delighted by the prospect of Biden staying in the race due to his apparent vulnerability in the polls .

Regardless of where they fall on the issue of Biden’s candidacy, members of Congress — both Democrats and Republicans — should work together to form an independent commission for evaluating the fitness of a sitting president to carry out his or her term.

Following Biden’s disastrous performance at the first presidential debate, House Speaker Mike Johnson (R-La.) suggested that the Cabinet invoke the 25th Amendment to remove the president from office, due to his apparent lack of mental acuity. After all, if he can’t effectively debate Donald Trump, how can he be trusted to handle the weightier matters of foreign policy and national security? Of course, the Cabinet is unlikely to do so.

Ironically, it was Republicans who poo-pooed a bill proposed by Rep. Jamie Raskin (D-Md.) in October 2020 that would have formed an independent commission to evaluate the president’s ability to serve if Congress requested such an evaluation. The commission — designed to supplement the 25th Amendment — would have consisted of eight physicians (two appointed by each member of Senate and House leadership) in addition to eight former top executive branch officials (four appointed by Republican congressional leaders, four by Democrats), and a chair appointed by the 16 other members of the commission.

The commission was necessary, Democrats argued, because of ambiguity in the original amendment. The bill came on the heels of then-President Donald Trump’s hospitalization for COVID-19, during which questions swirled about his ability to discharge the duties of his office— indeed, subsequent reporting suggests he was nearly intubated during the ordeal. At the time, Trump claimed the bill was a ploy by Democrats to remove then-candidate Biden from office, but that has proven to be untrue, not least because it went nowhere.

Today, it is time to revive that bill (which, conveniently, is no longer available on Raskin’s website ).

We are living in a gerontocracy — that is, our leaders are far older than the mass of the adult population. President Biden would be 86 by the time he finished his hypothetical second term , assuming he lived that long; Trump would be 82. There is a very high probability of a president of that age becoming incapacitated or dying due to any number of health complications. This presents not only problems for the function of government, but also dangers to American national security .

The American people are clearly very concerned about the risks associated with having such elderly presidents. Thus, establishing an independent, nonpartisan commission to evaluate a president’s capacity to serve and make important decisions could not only help assuage those concerns, but also protect this country and its citizens from the negative effects of ambiguous leadership presented by presidential health crises.

Furthermore, such a commission would help reassert Congress’s ability to check the power of the executive branch, which has grown exponentially in recent decades, in large part due to what Andrew Rudalevige calls the “invisible Congress.” Establishing a commission to assess the president’s ability to discharge the duties of his office is in keeping with its duty to conduct oversight of the executive branch.

Finally, and perhaps most importantly, creating an independent 25th Amendment Commission would protect against the Cabinet — or the first family — inappropriately shielding the president from scrutiny by simply conducting the business of government for him despite his incapacity.  Indeed, conservatives have long held that Biden is not in charge of his own White House.

As 25th Amendment expert Jim Ronan notes , it is unlikely that the vice president and a majority of the Cabinet would vote to oust their own president due to the political fallout that could ensue.

While not equivalent, many have argued that the Cabinet should have invoked the 25th Amendment to remove Trump from power on Jan. 6, 2021, when he allowed a mob of his supporters to attack the U.S. Capitol building . By not doing so, they ran the risk of being complicit in Trump’s (in)actions on that day, as they allowed him to maintain his grip on power until he left office on Jan. 20.

Although Democrats may not want to admit it, the president’s recent public performances, and subsequent reporting that suggests he is experiencing sundowning — a set of nighttime cognitive symptoms that often accompany dementia — demand that such a commission be established to protect against a White House, whether occupied by a Democrat or a Republican, that seeks to hide an incapacitated president.

Congress owes it to the American people.

Benjamin V. Allison is a Ph.D. candidate in history at the University of Texas at Austin.

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