On Tuesday, freshman Rep. Jamie Raskin, D-Md., wrote a "Dear Colleagues" letter seeking support for a bill that has approximately 50 co-sponsors. The letter explains:
"Please join a rapidly growing group of colleagues in cosponsoring H.R. 1987, the Oversight Commission on Presidential Capacity Act. It sets up and defines the Congressionally-appointed "body" called for by the 25th Amendment.
"Under Section 4 of the 25th Amendment, the Vice-President and a majority of the Cabinet or the Vice-President and a majority of "such other body as Congress may by law provide" can determine that the President is-for reasons of physical or mental incapacity-"unable to discharge the powers and duties of his office."
"The 25th Amendment was added to the Constitution in 1967, but in the last 50 years Congress never created the "body" that its language contemplated. Perhaps it never occurred to prior Congresses that setting up this body was necessary. For obvious reasons, it is indeed necessary, and now is the time for us to do it."
The bill suggests a "panel of elder statespersons (former Presidents, Vice Presidents, or various cabinet members), physicians, and psychiatrists selected in a bipartisan manner by Congressional Leadership. The body will then select an eleventh member as the Chair."
An independent commission of the type set forth in the proposed legislation - one not selected by the president, as his Cabinet is, and not able to be fired before it can determine incapacity - has a degree of independence the country should want when considering a matter as serious as removal. Moreover, the bill sets up a procedure whereby a concurrent resolution can trigger "an examination of the President to determine whether the President is incapacitated, either mentally or physically." Congress couldn't of course force the president to comply, but his refusal could "be taken into consideration by the Commission." While a majority of the commission and the vice president pursuant to Section 4 of the Amendment would be needed to replace the president with the vice president as "acting president." If the president disputes his removal, a vote by two-thirds of both the House and Senate would be needed to keep the vice president as acting president.
But, you say, "Republicans won't go for this, and in any case, Trump would veto it." Well of course, but the point here is to both solve a historical oversight (no panel has ever been prescribed) and to begin a national discussion. Many Republicans behind closed doors and Sen. Bob Corker, R-Tenn., in public, have shared the concern that Trump is unraveling, becoming more angry and erratic. At the very least, the legislation should induce some Republicans to engage in the debate and share their firsthand accounts.
In a brief telephone interview, Raskin said that Congress should use "every tool" in addressing what they see as Trump's manifest unfitness. "We have to get everything out there," he says. He concedes that the legislation won't pass now, but reiterates, "We need to have the debate." And of course, should the House and/or Senate flip from Republican to Democratic majorities next year, all of this becomes more concrete and urgent.
On a more immediate and practical level, congressmen on both sides of the aisle should consult with members of the administration going out the door to gather firsthand accounts of their interactions with Trump. As with impeachment, Democrats are reluctant to raise the 25th Amendment. But as Raskin argued, it may be easier for Republicans to recognize abject incapacity at some point than to accuse and convict Trump of dastardly behavior in the impeachment context.
We shouldn't be under any illusion that this is going to be enacted or that Vice President Pence would show the independence of mind to push an incapacitated president out the door. That said, it is a measure of the seriousness of the legitimate concern raised by a president whose temperament and ability to reason dispassionately - never his strong suits - seem to have deteriorated under the pressure of the presidency and an investigation into possible criminal conduct by him, his family and his close associates. It should also remind voters that a president's mental, emotional and temperamental states cannot be overlooked in electing the most powerful figure on the planet. On the contrary, they must be the primary considerations.
-- Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.