As it is currently written, the 25th Amendment's biggest problem isn't partisan overreach. The real question is who or whom the Vice President and the Cabinet should look to and rely upon for a determination of the President’s fitness. Or, in the event that Congress must make a determination about fitness, who or whom they should look to for guidance.
Tempting as it may be, the “I’ll know it when I see it” standard isn't going to work here. As we have seen over and over again during the past few years, the one thing that seems guaranteed in U.S. politics today is that about half the country will disagree with the other half. Instead, we need to set up a committee of experts. This country is not short on mental health professionals. And because doctors, like economists, may not all agree, any panel should be as diverse as possible. That way, the final assessment is not made by any one individual.
Bottom line: It is time to put some meat on the bones of the 25th Amendment. Congress should enact a statute that provides specific guidelines and guidance in the event that the 25th Amendment is invoked due to mental incapacity. This statute would instruct Congress on how to pick a panel of experts, how many should participate, who should pick them, and what criteria they should apply. It could even dictate that the President be forced to submit to a psychological evaluation.
Now is the time to figure out how and under what circumstances we can use the 25th Amendment in the case of mental incapacity. While creating layers of bureaucracy should not be the fallback solution when interpreting broad Constitutional provisions, measures like the 25th Amendment are useless without clarity. How can we trigger protections if we don’t know when or under what circumstances they should be triggered?
The determination of whether America’s nation’s chief executive has reached the threshold outlined by the 25th Amendment should be one based on science and medical evidence, not politics. The best way to guarantee that happens is by ensuring that medical and psychiatric experts play a role in the process.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and is the president of the Los Angeles Ethics Commission.