Feinstein and McConnell show we need a 25th Amendment for Congress

Over the past year, concerns have grown over whether some of our elected officials are healthy enough to properly serve us. 

On the presidential front, Americans are confronting the reality that they will likely have to choose between an 81-year-old and a 78-year-old in November 2024. Meanwhile, in Congress, examples abound of members suffering from declining health, most notably Sens. Dianne Feinstein (D-Calif.) and Mitch McConnell (R-Ky.).

The key difference between the president and Congress, however, is that should the former’s health prevent them from fulfilling their duties, the 25th Amendment can be invoked to transfer the office to another person. No such mechanism exists for members of Congress. 

Thus, when a senator or representative is too sick to do their job, their constituents are effectively left without full representation in Congress. And if that illness leads to long-term incapacity, the constituents’ underrepresentation continues until the senator or representative resigns, finishes their term or dies.

This is antithetical to our democracy.

Indeed, our nation was founded on the idea of “no taxation without representation.” While the original text of the Constitution did not fully embody this maxim, its subsequent amendments have all but guaranteed Americans direct representation in both chambers of Congress. The problem of incapacity undermines this guarantee.

More practically speaking, idle seats in Congress disrupt the legislative process. For one, they can cause gridlock within committees, as we witnessed back in April with Feinstein on the Senate Judiciary Committee. Furthermore, with each congressional chamber currently operating on thin partisan margins, a single absent member could swing the ideological leanings of the Senate or House from the controlling party to the minority party.

This is, evidently, a problem worth fixing. And in fact, as the 25th Amendment shows, it is a problem that we have solved before. Following the various illnesses of Dwight D. Eisenhower and the assassination of John F. Kennedy, questions arose over how to keep the executive branch functioning in times of presidential crisis. Within a few years, Congress passed and the states ratified the 25th Amendment, which includes, among other things, processes for the voluntary and involuntary transfers of the powers and duties of the president.

The time is now ripe to implement a similar amendment for members of Congress.

The incapacitation of an individual congressperson is not, of course, as chaos-inducing as that of the president. Yet, as noted above, it still greatly burdens our democratic system. And with the average age of Congress on the rise, we can expect the number of health issues within Congress to compound upon the existing causes of incapacitation within the legislative body.

What, then, would such an amendment look like? As I have recently laid out in an academic piece, the 25th Amendment is the natural starting point for inspiration.

To start, the first section of the hypothetical amendment could allow for members of Congress to voluntarily transfer their duties to an interim appointee in cases of temporary incapacitation. To avoid politicization, the section could require the interim appointee to be of the same political party and, in the case of representatives, from the same district. Such a process could help members of Congress ensure that their constituents remain properly represented while they, say, recover from a stroke, or seek out treatment for mental illness.

The second section of this amendment could then provide a process for the involuntary transfer of duties of a congressperson. Such a process would be reserved for scenarios in which a senator or representative could no longer fulfill their duties but refused to or lacked the capacity to willingly step down. While the specifics of this process could vary, the ultimate goal should be to have some process in place for these situations, lest millions of Americans continue to go underrepresented in Congress each year.

I am far from the only one to push for such an amendment. The American Enterprise Institute’s Continuity of Government Commission, for instance, has made similar recommendations, though geared more toward events of mass catastrophe as opposed to individual instances of incapacitation. Similarly, Sen. John Cornyn (R-Texas) has, in the past, proposed an amendment providing procedures for scenarios in which a significant portion of Congress is killed or incapacitated.

The American public also appears largely on board with tackling incapacity in Congress. Whenever polled on the issue of age, for example, the vast majority of Americans agree that our elected officials are too old. These numbers hold true regardless of political ideology.

Implementing a constitutional amendment is admittedly no easy feat. The latest one was ratified more than three decades ago. Yet, if one were to be adopted today, an amendment taking on the universally recognized issue of incapacity in Congress seems like a good candidate.

Our Constitution guarantees Americans representation in Congress. Let’s fight to ensure that this guarantee is fulfilled. 

John J. Martin is a research assistant professor of law at the University of Virginia School of Law and a fellow at the Karsh Center for Law and Democracy. He has also worked as an attorney at the Brennan Center for Justice.