What would a bipartisan commission to evaluate presidential fitness look like and what are the constitutional obstacles?
Executive summary
A feasible bipartisan commission to evaluate presidential fitness would be a standing, congressionally authorized panel of medical experts and retired senior officials, appointed by congressional leaders in a bipartisan fashion to assess capacity under Section 4 of the 25th Amendment; proponents have proposed specific formulas and membership counts to minimize partisan capture [1] [2]. Major constitutional obstacles include limits in the 25th Amendment itself—Section 4 centers the vice‑president and Cabinet, allows Congress to create “some other body,” but preserves a statutory and separation‑of‑powers minefield in how Congress appoints and directs such a body, and any law could face judicial challenge over Congress’s role in selecting and controlling the commission [3] [2].
1. What proponents propose: a technical, bipartisan panel modeled on Raskin’s bill
Advocates such as Rep. Jamie Raskin have offered concrete draft legislation to create a Commission on Presidential Capacity that would be bipartisan, composed of retired statespersons and medical professionals, and triggered only in extreme situations by a concurrent congressional resolution to examine the president and report to Congress — a structure intended to operationalize the “or of such other body as Congress may by law provide” language in Section 4 of the 25th Amendment [1] [4]. Public descriptions of the proposal describe appointment mechanics in which House and Senate party leaders select members by party, with the sixteen appointees choosing a seventeenth chair, and emphasize medical personnel among the appointees to supply clinical judgments about physical and mental fitness [1] [5].
2. Variants in size and expertise: balancing clinicians and statespersons
Different public analyses and drafts vary in numbers and composition — one account describes a ten‑member panel including psychiatrists, medical doctors and retired statespersons appointed by majority and minority leaders, another public outline speaks to a 17‑member commission with medical personnel and former officials — but the common thread is intentional bipartisanship plus clinical expertise to lend scientific legitimacy to determinations about incapacity [2] [3] [5]. Proponents argue that mixing clinicians with non‑partisan former officials could blunt purely political judgments and provide a credible, evidence‑based assessment for Congress and the vice‑president [6].
3. The constitutional tightrope: Section 4’s text and congressional power
Section 4 empowers the vice‑president and a majority of “principal officers of the executive departments” to declare incapacity, but it also authorizes Congress to provide by law “some other body” to carry out that role — a grant that permits a commission but does not specify appointment or control mechanisms, leaving unresolved questions about whether Congress can lawfully choose and direct a body to make essentially executive determinations without violating separation‑of‑powers limits [3] [2]. Critics and constitutional scholars warn that giving Congress a robust role in selecting and directing the commission could be vulnerable to constitutional challenge because it may substitute a legislative‑created body for executive officers in an inherently executive function [3].
4. Political and practical obstacles: incentives, timing and enforcement
Legal design problems intersect with political realities: if a statutory commission can be convened only by Congress, presidents may have strong incentives to conceal impairments; conversely, opponents warn a standing congressional pathway could be weaponized politically against presidents of the other party, raising concerns about legitimacy and the commission’s willingness to act absent broad bipartisan consensus [3] [4]. The 25th Amendment’s resurrection in moments of controversy — for example during presidential hospitalizations — shows both the usefulness of the framework and its reluctance in practice, which proponents say a commission would address but skeptics say could exacerbate [7] [3].
5. Where disputes would land: courts, Congress and norms
If Congress enacted a commission law, litigation would likely follow; courts would be asked to decide how much power Congress can constitutionally exercise in creating and directing a body that performs functions tied to the executive branch, and judges would also confront standards for assessing medical determinations and political questions about removal of a president — issues that commentators say make constitutional challenges probable [3] [2]. Absent clear, widely accepted statutory design and strong bipartisan political buy‑in, the proposal risks either being ineffective by design or being struck down or hollowed out by litigation and norm erosion [3] [2].