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Speaker of the House Nancy Pelosi introduced some unprecedented legislation on October 9th -- a bill that would create a commission to help to determine the fitness of the president to do his job. The bill is almost certainly not going to pass, but what would empower Congress to create such a commission in the first place? Pelosi specifically references a clause in the 25th Amendment -- a clause that has never before been invoked, but that does in fact make such a commission constitutional. So what does the 25th Amendment say? Why do we need it?
For most of this country's history, we had no provision for a vacant vice presidential office should the vice president die or assume the role of president. Some presidents went years without a vice president. It wasn't until the assassination of President John F. Kennedy in 1963 and subsequent vice presidential vacancy when Lyndon B. Johnson assumed the presidency that Congress decided to provide for the empty seat of power.
The 25th Amendment was passed by Congress in 1965 and provided for the president to appoint a new vice president with Congressional approval. It also codified a principle first established by John Tyler when he took over for William Henry Harrison following Harrison's death -- namely, that a vice president who becomes president is, in fact, president and not acting president.
The health and fitness of the sitting president are addressed in sections three and four of the Amendment, but only the third -- that the president may temporarily sign over his duties to vice president if incapacitated -- has ever been formally invoked. Both instances involved George W. Bush, who signed his duties over to Dick Cheney when he was put under for colonoscopies.
The fourth is where Pelosi's bill comes in. This section establishes that the vice president and a majority of the president's cabinet or the vice president and a majority of a body that Congress creates by law can together decide that the president is not fit to perform his duties. Pelosi's proposed bill essentially highlights this provision, suggesting that Congress move to establish this body.
It's important to understand, however, that this body would not have unilateral power to remove the president from office. Passage of such a bill would simply take some of the evaluation power away from the executive branch. Instead of the dual-executive cabinet and vice president deliberating together, the determination would be made between the vice president and an independent body of lawmakers and health professionals. For a role that's otherwise fairly weak, the 25th Amendment grants the vice president what amounts to absolute veto power in the event that the president's fitness is questioned.
