House Democrats’ new bill on the 25th Amendment, explained

House Speaker Nancy Pelosi, D-Calif., and Rep. Jamie Raskin, D-Md., unveiled a bill Oct. 9 to establish a commission that could be tasked with determining if a president is no longer fit for office.

The bill from Raskin, a former constitutional scholar, comes on the heels of President Donald Trump’s Oct. 2 announcement of his positive COVID-19 test. The bill would create what would be known as the ‘‘Commission on Presidential Capacity to Discharge the Powers and Duties of the Office” in accordance with the 25th Amendment to the Constitution.

The commission would not have the unilateral power to invoke the 25th Amendment and kick Trump or any future president out of the White House. Pelosi and Raskin insisted in a press conference that the move was unrelated to the election less than a month away. 

“This is not about President Trump,” said Pelosi. “He will face the judgment of the voters. But he shows the need for us to create a process for future presidents.”

Trump responded to the news by tweeting that Pelosi is angling to one day replace Democratic presidential nominee Joe Biden with his running mate, Sen. Kamala Harris. There is no factual basis to support that claim, and Pelosi would not sit on the commission the bill would create.

The Constitution allows for such a commission

The 25th Amendment, established in 1967 after the assassination of President John F. Kennedy, spelled out general procedures to guide the replacement of a president or vice president in the event of death, incapacitation, resignation or removal from office. 

RELATED: What happens if a president or nominee dies or is incapacitated? Around elections, it gets thorny

The first three sections of the amendment lay out the succession plan for when these top two positions go vacant. They also allow the president to declare himself unable to carry out his duties and temporarily transfer the powers of the presidency to the vice president.

The fourth and final section is what’s relevant to Raskin’s bill. The section authorizes the vice president and a majority of the Cabinet, or “of such other body as Congress may by law provide,” to declare a president “unable to discharge the powers and duties of his office.”

“Legislation like this is provided for in §4,” tweeted Brian Kalt, a law professor at Michigan State University and the author of a book on the provision. “It says that the VP and Cabinet invoke §4, but that Congress can legislate a different body to substitute for the Cabinet in that process.”

“It gave Congress the power to replace the Cabinet with ‘such other body’ as it might create by law,” added Joel K. Goldstein, a professor of law emeritus at St. Louis University and the author of two

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Can Pelosi Invoke 25th Amendment To Remove Trump From White House? What The Law States, How It’s Implemented

KEY POINTS

  • President Trump has been given two experimental treatments and a powerful steroid to treat COVID-19
  • Pelosi questioned Trump’s recent behavior, saying he appears to be in an “altered state”
  • Trump responded, calling Pelosi crazy

Democratic lawmakers say they are concerned about President Donald Trump’s mental state following treatment for COVID-19 and introduced legislation Friday to create a commission to determine if the president is fit for office under the 25th Amendment to the U.S. Constitution.

The discussion comes just 24 days before the Nov.3 election.

Rep. Jamie Raskin, D-Md., said there never has been a good time to set up the commission but the current situation has focused everyone’s attention.

House Speaker Nancy Pelosi denied this is just another attempt by Democrats to go around the voting process.

“This is not about President Trump. He will face the judgment of voters. But he shows the need to create a process for future presidents,” Pelosi said.

The 25th Amendment was ratified in 1967 to clarify the process, and though it calls for such a commission, one never was set up.

Historically, the practice has been for the vice president to succeed to the nation’s highest office, if the president was out of the picture.

George H.W. Bush became acting president in July 1985 while Ronald Reagan underwent a colonoscopy, but not when Reagan was shot in 1981. Richard Cheney became acting president in June 2002 and July 2007 while George W. Bush underwent colonoscopies. In all three cases, the president sent letters to the speaker of the House and president pro tem of the Senate, making the appointments. Subsequent letters then were submitted rescinding the appointments.

The last time a vice president succeeded to the presidency due to the death of a president was 1963 when Lyndon Johnson became president after John F. Kennedy was assassinated.

If the vice president and majority of the president’s cabinet determine the president is unable to perform the duties of office, they can issue a declaration and transfer power to the vice president.

Pelosi Thursday said the president appears to be “in an altered state right now,” citing the powerful steroid dexamethasone he was prescribed to treat COVID-19. The steroid is known for causing aggression, irritability and interference with thought processes. She also mentioned Trump bragging about the medications he was given, all of which still are undergoing evaluation.

Trump responded by calling Pelosi crazy.

Pelosi cited Trump’s tweet Tuesday ordering an end to stimulus negotiations while Senate Majority Leader Mitch McConnell admitted he had stopped going to the White House in August because he was dissatisfied with the precautions being taken against spread of the coronavirus.

This is not the first time invoking the 25th Amendment has come up during Trump’s presidency. The New York Times reported former Deputy Attorney General Rod Rosenstein suggested it two years ago during the investigation into Russian interference in the 2016 election.

The order of succession is laid out by the Presidential Succession Act of 1947:

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