Congress should pass a law to help choose and maintain a stable president in the future. This would require presidents to undergo neurocognitive exams to determine if they are mentally impaired or unstable.
To take that step, both parties must move beyond the immediate framework of Trump versus Biden or Republican versus Democrat. As long as Democrats draft any legislation assessing a president's mental fitness to perform their duties and apply it to Trump, it is dead in the water. The same applies to Republicans seeking to prove that Biden was mentally incompetent to overturn his legislation.
A president’s mental condition raises national security concerns, including not being fully aware when making critical decisions, such as starting a nuclear war. It’s expected that a president’s advisors would recognize this condition and take appropriate action, unless those advisors were sycophants.
We currently find Republicans accusing Democrats who served in President Joe Biden’s administration of concealing his declining mental capacity. This initiative was triggered by a combination of three events: Biden’s poor performance in his televised campaign debate with Donald Trump, his withdrawal from the race, and the recent revelation of his prostate cancer.
Republicans have two objectives for investigating the Biden administration. One is strictly political; they aim to reveal inconsistencies among Biden’s staff, allowing the Republicans to accuse them of lying. The other is to prove that Biden was mentally unstable, which is an unattainable task because there is no objective medical diagnosis to establish any president’s acuity.
The Republican strategy involves exposing certain lies and concluding that Biden lacked the mental competence to realize that his staff was using his “autopen” without his approval or knowledge to sign legal documents, such as executive orders and pardons.
Consequently, Trump directed his Justice Department to launch a wide-ranging investigation into Joe Biden and White House officials for allegedly committing “TREASON” in their apparent cover-up of Biden’s mental state. However, Trump admitted to NBC News that he had uncovered no evidence that anything specific had been signed without Biden’s knowledge or that someone in the former president’s administration had been acting illegally.
Congressional Republicans joined the attack. House Oversight Committee Chair James Comer issued subpoenas to Biden’s doctor and eight high-ranking advisors and staff to testify before Congress regarding Biden’s mental fitness.
Democrats have depicted these investigations as attempts to undermine Biden's policies that Republicans oppose. They see Trump and the Republicans as overtly political in their quest for revenge against the Biden family.
Some take an offensive stance, like California Gov. Gavin Newsom during an interview with FOXLA. Newsom claims Trump is not all there, characterizing him as “incapable now of even a train of thought. He’s making things up.” Newsom’s point extends beyond a president being confused to being delusional. His remarks underscore a deeper concern regarding a president’s stability – can they make a rational decision?
This question arose during Trump’s first term, when cabinet members and the Vice President experienced the insurrection on January 6, 2020, that unfolded. As rioters broke into Congress to stop the confirmation that Trump had lost the election, Trump “gave no order to deploy the National Guard that day and made no effort to work with the Department of Justice to coordinate and deploy law enforcement assets,” said Republican Rep. Liz Cheney.
Eleven of Trump’s closest advisors, including the Secretaries of Education and Transportation, resigned rather than continue serving under him because he failed to act decisively to stop the insurrection. Some White House officials asked Vice President Pence to invoke the 25th Amendment. If enacted, Pence could legally assume the president's functions while the president could not perform his duties. He refused. However, the conservative Cato Institute arguedthat Pence should have invoked the 25th Amendment on Jan. 6.
Instead, Cato notes, “in the midst of a violent constitutional crisis, then-Vice President Mike Pence flatly usurped the president’s constitutional authority” to take actions that Cheney said were desperately needed. Pence did so without following the proper procedures, “while the rest of the government, including the military, appears to have gone along with it.”
The 25th Amendment of the Constitution was enacted in response to the assassination of President John F. Kennedy in 1967. Democratic Senator Birch Bayh led the effort. Prior to that tragedy, three other presidents had been physically and mentally unable to fulfill their duties due to illness or assassination-related injuries: James Garfield, William McKinley, and Woodrow Wilson.
The Constitution states that the Vice President, in the case of a president’s “Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.” However, in all prior instances when a president was unable to fulfill their constitutional responsibilities, the vice president has opted not to replace the president. This attitude is attributed to vice presidents’ desire to avoid the appearance of being a usurper.
The authors of the 25th Amendment recognized that there could be countless ways to define “unable,” so they settled that declaring a president incompetent would be a politically negotiated decision. The Vice President, with a necessary majority of the Cabinet, would send a letter to Congress explaining why the Vice President should become the "Acting President" due to the President being unable to perform his duties. If Congress agreed by a two-thirds vote in both chambers within three weeks, it would confirm that request.
The Amendment lays out a rational process. However, it assumes that Congress will decide in a nonpartisan fashion, with the president’s party voting to remove him. It also assumes that the majority of the Cabinet secretaries would make that request. This is not likely if a President chose all of them due to their personal loyalty and not to government institutions, like the courts.
However, one White House official chosen by the president is expected to be more loyal to the institution than to the president. That would be the White House physician, who everyone anticipates will adhere to medical standards rather than the president’s wishes.
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Dr. Jeffrey Kuhlman, a former White House physician for three presidents, noted that the public cannot depend on a physician to provide relevant medical information to help decide whether the 25th Amendment should be invoked. It turns out there is no obligation to do so. Currently, the doctor’s role is limited to offering a medical opinion, based on facts, that may not be disclosed.
From his experience, Kuhlman found that a president must be mentally equipped to evaluate a complex situation, formulate a plan, and consider the alternatives and potential consequences of a decision. Directives must be issued promptly to be effective. Trump's failure to respond to the January 6 attack on Congress raises the question: Was he incapable of making a critical decision in a timely manner, or did he willingly allow the attack to continue?
Under the present legal framework, it is impossible to conclude whether a president is unable to make critical decisions due to medical conditions or just making bad decisions. There is no legal requirement for U.S. presidents to even undergo an annual physical exam.
They may choose to release the results, but there is no mechanism to verify the accuracy of the information they provide. Those made public varied from opaque and vague positive generalizations.
The 25th Amendment allows Congress to create a panel to assess the president's mental health, but such a panel has never been formed. New Yorker writer Evan Osnos, in an interview with NPR's Terry Gross, host of Fresh Air, pointed out that during Trump’s first administration, two Democratic members of Congress introduced bills to establish this panel. A group of medical professionals, doctors, or even former presidents or vice presidents could have been included. It was too partisan for Republicans to support it.
The underlying problem that both parties should address is how to prevent a president who is mentally disabled from endangering the nation. Trump is a perfect example of how the 25th is ineffective. It requires an overwhelming majority of the president’s party to support his removal. And history has shown that is not going to happen.
The same problem occurred when some of President Lyndon B. Johnson’s White House staff felt he was becoming paranoid about critics of the Vietnam War. Their only recorded action was to consult psychiatrists to see what they could do to help Johnson.
More recently, Trump was delusional in believing that there were 3 to 5 million illegal votes against him in 2016. The media clobbered him for those statements, but Republicans in Congress overwhelmingly questioned the legitimacy of Biden’s victory. And Trump just kept repeating his fantasy and won a second term.
Ruy Teixeira of Liberal Patriot on Substack noted that Trump is running slightly ahead of Obama and Bush at this point in their second terms. Republicans in Congress have little incentive to question Trump’s mental state; he is popular, and that is all they need to endure his unfettered exaggerations. The reality is that Congress must operate within the framework of the 25th Amendment.
Nevertheless, within that framework, Congress could pass legislation requiring a president to undergo an annual examination by a doctor of the president’s choosing. Most importantly, the exam should be public and include results for specific metrics, such as blocked arteries supplying oxygenated blood to the brain and evidence of past unnoticed strokes, i.e., a Transient Ischemic Attack (TIA), which have been given no mention as a possible cause of mental malfunctions. A TIA is a brief blockage of blood flow to the brain.
Most individuals are unaware that one has occurred, as TIAs typically last only a few minutes, with symptoms resolving within an hour. Past TIAs may be detected even a year or more later. That is essential information to know since recent medical research has found evidence of cognitive dysfunction and subsequent cognitive decline resulting from them. For instance, could Biden’s noticeably diminished acuity stem from undiagnosed TIAs? Could it also lead to a president failing to make rational decisions?
These two requirements and a few others could render the Constitution’s 25th Amendment more functional. It avoids establishing a new panel, which would spark endless debate over its membership. Instead, this approach necessitates an open process with measurable conditions that could impede a president’s ability to carry out their duties. The procedure for relieving a president of their responsibilities remains intact while providing a foundation to support a rational political process.
Congressional representatives must prioritize the nation's interests over their party’s agenda to remove an incumbent president or overturn a past president’s legislation. Democrats have an opportunity to collaborate with some Republicans to pass legislation that requires a standardized and publicly available exam for presidents and presidential candidates, provided it does not apply to the current president. This could be written to apply to all presidential candidates for the 2028 election, as Trump will not be running.
Opposing this approach will offer no advantage to Republicans since it will not pertain to Trump. Some Democrats will resist it for that exact reason; however, pursuing legislation that applies to Trump is a fool’s errand.
This is a rare opportunity for Congress’s party leaders to acknowledge that they can play a positive and crucial role in helping to choose and maintain a stable president in the future. Who will lead this effort?
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Nick Licata, a five-term Seattle City Council member, is the author of Becoming a Citizen Activist and Student Power: Democracy and Revolution in the Sixties. He is also the founding board chair of Local Progress, a network of 1,300 progressive municipal officials.