Why is Pelosi suddenly talking about the 25th Amendment?

Speaker backs Raskin bill to set up nonpartisan commission to determine a president’s fitness, says it’s not about Trump

Speaker Nancy Pelosi attends a news conference at the Capitol on Oct. 9, 2020, to discuss legislation to create a commission under the 25th Amendment to the Constitution that could remove the president from executive duties. (Caroline Brehman/CQ Roll Call)
Speaker Nancy Pelosi attends a news conference at the Capitol on Oct. 9, 2020, to discuss legislation to create a commission under the 25th Amendment to the Constitution that could remove the president from executive duties. (Caroline Brehman/CQ Roll Call)
Posted October 9, 2020 at 3:42pm

Why would Speaker Nancy Pelosi unveil legislation less than one month before Election Day to establish a commission under the 25th Amendment to determine the president’s fitness for holding office?

That’s the question many in Washington are asking Friday after Pelosi held a news conference with Maryland Rep. Jamie Raskin, a constitutional scholar and member of the House Democratic leadership team, to back his bill setting up a Commission on Presidential Capacity to Discharge the Powers and Duties of the Office.

Democrats say they’re simply setting up a process authorized by the Constitution that should’ve been codified long ago but is especially needed now because of the COVID-19 pandemic. Republicans think Pelosi is continuing the effort she started with impeachment to try to oust President Donald Trump. And others suggest Pelosi is signaling that Trump, who tested positive for COVID-19 last week, is unfit to hold office.

The 25th Amendment of the Constitution provides authority for the vice president to take over for the president if the commander in chief is “unable to discharge the powers and duties of his office.” Most people are familiar with the part of the 25th Amendment that allows the vice president and a majority of the presidential Cabinet to determine if the president is unfit to serve, but it also delegates such authority to “such other body as Congress may by law provide.”

Raskin’s legislation, an updated version of a bill he first introduced in 2017, would establish such a body: a 17-member commission composed of four physicians, four psychiatrists and eight former high-ranking executive branch officers appointed by congressional leadership from both parties. The final member would be selected by the other 16 to serve as chair of the commission.

The commission, if called upon through House and Senate approval of a concurrent resolution, would “carry out a medical examination of the president to determine whether the president is mentally or physically unable to discharge the powers and duties of the office,” according to the bill text. The president could refuse the examination, but the commission would be authorized to factor that into their decision.

If the commission determines the president is unfit to perform his executive duties, the vice president would take over.

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A variety of theories have been floated as to why Pelosi would push this bill at this time, but let’s start with the California Democrat’s own answer.

“Congress has a constitutional duty to lay out the process by which a president’s incapacity as the president of any party is determined,” Pelosi said.

“A president’s fitness for office must be determined by science and facts,” she added. “This legislation applies to future presidents, but we are reminded of the necessity of action by the heath of the current president.”

‘The age of COVID-19’

Pelosi’s claim that Trump’s COVID-19 diagnosis reminded her of the need for such a commission is supported by her lack of interest in Raskin’s bill, which he first introduced in May 2017, until now.

Raskin said he wishes Congress had set up a body 50 years ago but acknowledged the pandemic is “what demands action” on it now.

“In the age of COVID-19, which has killed more than 210,000 Americans and now ravages the White House staff, the wisdom of the 25th Amendment is clear,” he said. “What happens if a president, any president, ends up in a coma or on a ventilator and has made no provisions for the temporary transfer of power?”

Republicans, who’ve been on the attack since Pelosi teased the bill announcement at her weekly presser on Thursday, think the speaker is just continuing down a path of trying to overturn the results of the 2016 election.

“She’s now trying to overturn the results of next month’s election,” House Minority Whip Steve Scalise said Friday on Fox News before Pelosi’s news conference. “She’s wanted to remove President Trump from office because she doesn’t agree with the people’s choice from the last election.” 

Pelosi insists that’s not the case.

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

The House is not scheduled to be in session until after Election Day, so Democrats clearly aren’t trying to push this bill before then.

As to Scalise’s claim that the measure is about overturning the results if Trump wins reelection, there’s no way to prove whether that’s part of the calculus or not. Pelosi has said consistently for months that she is confident former Vice President Joe Biden, the Democratic nominee, will beat Trump.

Trump’s theory

Trump has his own theory on the 25th Amendment bill that has nothing to do with him. He thinks the speaker is trying to set up a process for replacing Biden with his running mate, California Sen. Kamala Harris.

Trump and some Republicans have consistently questioned Biden’s mental faculties.

“There are significant questions that have been raised about Joe Biden’s potential mental decline, his acuity, essentially how up is he for the task of being president,” Sen. Ted Cruz said Friday on MSNBC in the context of talking about why a virtual debate would provide an unfair advantage to Biden over a live one.

The host then asked the Texas Republican if similar questions had not also been raised about Trump, like Pelosi questioning aloud in recent days ahead of her 25th Amendment bill announcement whether the steroids Trump had been taking for COVID-19 treatment have affected his judgment.

“Speaker Pelosi opposes the president, has tried to get him out of the office from the beginning,” Cruz said, calling the 25th Amendment bill announcement “a political stunt” and saying he doesn’t have questions about Trump’s mental faculties like he does of Biden’s.

If Biden wins and Democrats move forward with the bill, it could put Republicans who have questioned Biden’s mental fitness in a difficult spot.

“If the president wins reelection, yes it will apply to him. If he doesn’t, it will apply to the next president of the United States,” Pelosi said.

Next Congress

Raskin said he sees action on the bill “certainly in the next Congress.” Pelosi did not speak about timing, but she said Friday’s introduction was about socializing the legislation.

“The timing is now because people want to know,” she said. “We have to give some comfort to people that there is a way to do this very respectful, not making a judgment on the basis of a comment or behavior that we don’t like, but based upon a medical decision.”

House Freedom Caucus Chairman Andy Biggs thinks Pelosi’s motivations are about influencing voters’ views of Trump ahead of the election.

“Democrats have increasingly taken advantage of COVID-19 in an attempt to cause political harm to President Trump,” the Arizona Republican said in a statement. “Instead of taking the president’s recovery at face value, Democrats have distorted and manipulated the truth, and they have made it a political cesspool.”

Biggs reiterated his call for House Minority Leader Kevin McCarthy to advance a motion to vacate the chair to oust Pelosi as speaker, saying she “continues to abuse her power for political purposes and denigrate this institution to the point of no return.”

McCarthy has so far declined to use the motion to vacate and remains unlikely to do so. Like Cruz, he dismissed the 25th Amendment bill as a political stunt and questioned Pelosi's priorities.

Most of the questions behind Pelosi’s motivations can’t be clearly answered now. But if Biden wins the election and Democrats do not advance the bill, then it will be argued their motivations were aimed at Trump. If they advance it in spite of a Biden victory with the pandemic likely still raging, then their COVID-19 rationale holds.

But if Trump wins, the questions about the true motivation for the measure will likely persist.