A number of recent health incidents involving members of Congress has raised questions about what to do when lawmakers are incapacitated. Senior Fellow John Rogan ’14, who co-teaches the Rule of Law Clinic, argues how to protect democratic legitimacy in those moments.
Congress needs a better way to handle the mass-incapacity problem. Reformed procedures should include two steps: a process for quickly declaring incapacities followed by the immediate succession of temporary replacement members to serve while the elected lawmakers are incapacitated.
Proposals to authorize a group of individuals to declare lawmaker incapacities are sensible for scenarios involving a limited number of members. But a more efficient process is needed for mass-incapacity scenarios. The best approach is to use a simple test for incapacity, such as the ability to participate in a quorum call or cast a vote. If a lawmaker were unable to do these things, he or she would be declared incapacitated. This procedure should be used only during or in the aftermath of a catastrophe that killed or incapacitated a large number of members. Both chambers should create procedures for certifying the existence of such a catastrophe, perhaps by empowering legislative leaders to make that determination. Members declared incapacitated under this policy should be allowed to declare the end of the incapacity at any time. This is the reform recommended by students in Fordham Law School’s Rule of Law Clinic, which I co-taught.