Of the three branches of the federal government, only one, the executive, has a mechanism to remove and replace an incapacitated officeholder.
The 25th Amendment to the US Constitution provides a method for the president to self-declare that he is unable to discharge the powers and duties of his office and provides, alternatively, that the Vice President and a majority of the Cabinet may find that that the President is unable to discharge the powers and duties of his office.
For public and non-partisan acceptance, it would take an amendment to the US Constitution for a similar mechanism in the case of the incapacitation of a member of the US Supreme Court.
However, the US House of Representatives and the US Senate each have the power without a constitutional amendment to avoid problems of incapacitated members by changing its procedural rules.
The advanced ages of many members and the close margins of the two major parties in control of the two houses of Congress are evidence of the need to address incapacitation in representatives and senators. The recent speaking difficulties of Senate Minority Leader Mitch McConnell (R-Ky.) and the ongoing health issues of Senator Dianne Feinstein (D-Calif.) demonstrate the urgency.
Both branches of Congress need to change their rules to allow “Proxy” voting when a member is “Incapacitated,” physically or mentally. Here is a proposed rule.
There should be two ways for Proxy voting to go into effect. First, a member might initiate the process by signing a 30-day “Certificate of Incapacitated” to be delivered to the Speaker of the US House of Representatives or the Majority Leader of the US Senate.
Second, Proxy voting would be effective when a member is found to be Incapacitated by the member’s “Personal Physician” or an “Incapacitated Board.” The Personal Physician or Incapacitated Board would deliver a 30-day Certificate of Incapacitated to the Speaker of the House or the Majority Leader of the Senate.
Under this proposed rule, members would designate a Personal Physician (and a substitute Personal Physician, should the original become unable to serve). The Personal Physician would make a finding of Incapacitated for an initial 30-day period and renew the determination as necessary for subsequent 30-day periods.
The Personal Physician would attest in the finding that he or she met with the member within five days of the finding and was mindful of, although not strictly bound by, the requirements for the appointment of a guardian in the state that the member represents. The Personal Physician would have the “Certificate of Incapacitated” delivered to the Speaker of the House or the Majority Leader of the Senate. The member could change his or her Personal Physician (and substitute Personal Physician) designee(s) any time he or she was not under a Certificate of Incapacitated.
Under this proposed rule, members would also designate another member of the US House of Representatives or US Senate to be their Proxy. The Proxy would be able to vote for the member in committees or on the legislative floor when the member declares himself or herself Incapacitated or when he or she is so found by his or her Personal Physician or an “Incapacitated Board.” The member could change his Proxy designee any time he or she was not under a Certificate of Incapacitated.
The proposed rule would require all members of the US House of Representatives or US Senate to designate a Personal Physician and a Proxy. In the event that a member did not designate a Personal Physician and a Proxy within 10 days of taking the oath of office, the Speaker of the House or the Majority Leader of the Senate would act as the Proxy. Within 15 days of the beginning of the session the Speaker would appoint a House Incapacitated Board and the Majority Leader would appoint a Senate Incapacitated Board.
Each Incapacitated Board would consist of three physicians to make Incapacitated decisions for members who had not designated Personal Physicians. In making a finding of Incapacitated, each physician on the House or Senate Incapacitated Board would attest that he or she had met with the member within five days of the finding and was mindful of, although not strictly bound by, the requirements for the appointment of a guardian in the state that the member represents. The House or Senate Incapacitated Board findings would have to be unanimous.
In the absence of a Personal Physician’s finding of Incapacitated, a request for the House or Senate Incapacitated Board to consider whether a member was Incapacitated would require the signatures of at least 25 percent of the US House of Representatives or US Senate.
Under a determination of Incapacitated, a member would continue to be paid and covered by benefits.
A determination of Incapacitated could be overturned by a majority vote of the US House of Representatives or US Senate.
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