• The 25th Amendment articulates how to transfer power should the president become incapacitated but Congress never set up the commission called for in Section 4
  • Pelosi said legislation introduced Friday to remedy the oversight is not aimed at President Trump
  • Trump is on a powerful steroid that can interfere with thought processes

Rep. Jamie Raskin, D-Md., and House Speaker Nancy Pelosi, D-Calif., unveiled legislation that would fulfill a provision of the 25th Amendment, giving Congress the ability to assess a president’s mental fitness to carry out his duties.

Pelosi told a news conference Friday the legislation is not aimed at President Donald Trump. However, she said Trump's behavior since his COVID-19 diagnosis had convinced lawmakers it was time to make contingency plans.

Michigan State University law professor Brian Kalt said though the amendment is largely clear, “it’s not hard to envision a legal scenario that spins out of control quickly.”

The 25th Amendment, adopted in 1967, articulates how to transfer power should the president be deemed unfit to perform his duties. The determination would be made by the president himself or by the vice president and the Cabinet, who would send letters to the speaker of the House and the president of the Senate pro tem announcing the decision. The president could be returned to power once the crisis had passed.

The amendment has been invoked just three times: once by Ronald Reagan and twice by George W. Bush when they underwent colonoscopies.

The problem arises when a president is incapacitated but unwilling or unable to admit it.

Section 4 of the amendment stacks the odds in favor of a president retaining power. Even if power initially is transferred to the vice president, the president could declare himself fit. The vice president and Cabinet would then have four days to decide whether to return power. If they disagree, the issue is sent to Congress, which would have to muster a two-thirds majority within 21 days to keep the president out of power. The president could then reinitiate the process.

The amendment is silent on what happens if both the president and vice president are incapacitated. The Succession Act of 1947 would put the speaker of the House in charge in that case. But there are questions over whether it is constitutional to put a member of Congress into the succession mix.

“The Constitution and the line of succession statute are premised on the notion that our top officials will proceed sensibly and in good faith, with due regard for the country’s need for steady leadership. But those qualities seem to be in shorter supply today than they were in 1787 and 1967,” Kalt said in a Washington Post op-ed. “They are in even shorter supply a month before Election Day.”

Michele Dauber, a law professor at Stanford University, said there’s no doubt in her mind that Trump is impaired. She tweeted she was given dexamethasone following brain surgery, and “I couldn’t be president of my cat” while on the steroid.

“He should not be exercising the powers of the office of president on that drug. We are lucky if he doesn’t start a war. He’s incapacitated,” she tweeted.

The amendment called on Congress to set up a commission that could evaluate the president’s mental state.

“The 25th Amendment was adopted 50 years ago, but Congress has never set up the body it calls for to determine presidential fitness in the event of physical or psychological incapacity. Now is the time to do it,” Raskin said in unveiling the bill.

The bill authorizes Congress to pass a resolution calling for a presidential assessment commission. The House speaker, Senate majority leader and the minority leaders in both the House and Senate would select four doctors and four psychiatrists to serve on the commission. Four former government leaders chosen by each party also would serve on the panel, and a 17th member would be selected to serve as the chair. None of the commission members could be in office, employed by the federal government or an active member of the military.