It is becoming a familiar pattern: a member of Congress experiences a health scare followed by demands for his or her resignation — which the lawmaker typically rejects. Senator Mitch McConnell (R-Ky.) batted away pressure to step down recently after he froze at a press conference for the second time this year.
Only a few months earlier, one of McConnell’s octogenarian colleagues, Sen. Dianne Feinstein (D-Calif.) dismissed calls for her resignation after a bout with shingles had kept her away from the Senate for months.
At the heart of these episodes is the meaning of legislative incapacity. What does it mean for members of Congress to be unable to do their jobs? Legislative incapacity has both a medical and a public dimension. The medical aspect focuses on a lawmaker’s physical and intellectual ability, while the public aspect refers to the impact of a lawmaker’s condition on the country.
Medical considerations help assess the quality of a lawmaker’s engagement. Legislative work involves a range of cognitive abilities to make judgements. For insight on the standard for assessing these capacities, we can turn to lawmakers who designed the 25th Amendment, which deals with presidential incapacity.
The amendment’s drafters emphasized the importance of decision-making ability. One proposed test was whether a president could “make or communicate a rational decision to step down.”
In medical practice, a “rational standard” is used to determine informed consent. It requires understanding the risks and benefits of choices. To meet this standard, lawmakers would need to “evidence understanding” by explaining their decisions, should they choose to do so, as speech cannot be compelled.
In its entirety, the rational standard as applied to lawmakers would encompass comprehension, analysis and an ability to effectively communicate with colleagues, staff, and constituents.
A more subtle question related to decision-making capacity is insight. Specifically, does a lawmaker have insight into his or her limitations? A lawmaker who recognizes a mild intellectual limitation, such as the memory loss that often comes with aging, could take steps to compensate for it, such as by taking more notes or relying more on staff. But a member unaware of his or her own severe intellectual limitations would have trouble serving effectively.
The duration of a physical or intellectual impairment is also relevant. Lawmakers who suffer an impairment but are likely to recover relatively quickly would not typically need to resign. Sen. John Fetterman’s (D-Pa.) hospitalization for depression earlier this year did not provoke serious calls for his resignation. He was expected to recover and return to the Senate, which he did. But the calculus would be different for a lawmaker with a poor prognosis or, worse, a progressive condition.
While physical and cognitive limitations are important factors, these considerations need to be judged alongside lawmakers’ unique responsibilities and the national interest at any given moment in time.
An official’s indispensability is a critical consideration here. For example, incapacity does not mean the same thing for members of Congress as it does for the president. Unlike members of Congress, the president must be prepared to respond to an emergency at a moment’s notice. Congress goes out of session, but the presidency never does.
It is also a question of numbers. The president has a singular role. One individual leads the executive branch, whereas Congress’s powers are dispersed among its 535 members. For these reasons, the Constitution’s text explicitly envisions the possibility of a presidential “inability,” whereas it does not mention that contingency for lawmakers.
Despite this omission, legislative incapacity can have profound consequences. The differences between the president’s and lawmakers’ responsibilities merely make addressing certain cases of legislative incapacity less urgent. But that does not mean a lawmaker’s incapacity or absence would not be pressing and potentially compromise the national interest.
If a lawmaker’s physical or cognitive limitations impede the functioning of a chamber of Congress for more than a brief period, it could be appropriate for the person to leave office. Feinstein’s absence had significant consequences, because her vote was required to move judicial nominees out of committee. Future absences of even a few lawmakers could have significant impacts because both chambers of Congress are currently closely divided.
The events occurring at a given moment are another factor in assessing the national interest. Senator Birch Bayh (D-Ind.), the 25th Amendment’s principal framer, said a very brief presidential inability might not ordinarily require the amendment’s use to separate the president from the office’s powers and duties. That would change, he said, if “missiles were flying toward this country,” given the “severe consequence when viewed in the light of the problems facing the country.”
Similar reasoning applies to determining legislative incapacity. A national crisis demanding relatively swift congressional action on momentous issues could change the standard for what constitutes a legislative incapacity, especially if a member’s incapacity were to impede Congress’s functioning, such as by creating gridlock on a key committee handling confirmations or spending decisions.
Additionally, it would be important to maximize Americans’ representation for votes on massive spending measures, military authorizations, or other significant decisions. Hundreds of thousands or millions would go unrepresented if their senator or House member were unable to participate. Conversely, handling an incapacity should not distract or otherwise interfere with the response to a crisis.
Disagreements will continue over whether lawmakers experiencing health challenges should resign. To better resolve these disputes, lawmakers and the public first need to define congressional incapacity. Without clarifying the definition, it will be hard to ensure that our leaders remain capable of performing the legislative responsibilities with which they are entrusted.
John Rogan is a senior fellow at Fordham Law School. Joseph Fins is a professor at Weill Cornell Medical College, the Chief of the Division of Medical Ethics at Weill Cornell Medicine, and a visiting professor at Yale Law School.