Constitutional Gaps for Addressing Senators' Incapacity

Yesterday Senate Majority Leader Mitch McConnell froze for an extended period for the second time in less than two months. It is possible that McConnell is experiencing only intermittent effects of the concussion he suffered after a fall in March; perhaps these episodes do not reflect on his ability to continue to perform his duties. But it is also possible that McConnell is in the throes of a worsening disability. Meanwhile, Senator Diane Feinstein appears to be substantially more incapacitated than McConnell. What can be done to address the issue of a Senator who is unable to do the job?

The Constitution includes no mechanism for a Senator to step down temporarily. The operative provision is contained in the Seventeenth Amendment. It states:

When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

A temporary disability -- say an illness that will require a recovery period of several months -- does not constitute a vacancy. True, a Senator who expects to be temporarily incapacitated could resign, whereupon the governor (if granted the authority by state legislation) could appoint a replacement; the replacement could then resign when the regular Senator is able to resume their duties; however, unless all of this occurs near the end of a Senatorial term, the resignation(s) will trigger a special election, which could go badly. Thus, there is a strong disincentive for a Senator to facilitate a temporary replacement.

What about a permanent disability of the sort that Feinstein pretty clearly seems to be suffering and that McConnell may be suffering? In most cases, one would hope that the Senator would recognize the disability and resign. However, ego, vanity, and/or (quite understandable) denial may prevent the Senator from taking that step. Meanwhile, certain kinds of mental deterioration can lead to a variation on the Dunning-Kruger effect: the very mental incapacity that makes a Senator unable to perform the job also prevents the Senator from realizing the inability. And of course there are other sorts of disability -- a Senator who falls into a coma, for example -- that make it literally impossible for the Senator to resign.

In other settings, we have ways of dealing with this sort of problem. To address various possible medical treatments, one can create a living will, advance directive, or health-care proxy to either make one's wishes known in advance or empower someone else to make a decision in one's stead. Something like that would make sense for Senators, but there's no available mechanism.

Or is there? Maybe we can get something out of Article I, Section 5. Its first clause makes each chamber of Congress "the judge of the elections, returns and qualifications of its own members." In Powell v. McCormack, the Supreme Court held that the House could not add additional qualifications beyond those set forth in Article I, Section 2. That implies that the Senate cannot add requirements beyond those set forth in Article I, Section 3: at least 30 years old; a US citizen for at least 9 years; and an inhabitant of their state. The list doesn't include "mentally fit" or "not in a coma," but perhaps we might say that those are implicit qualifications. Even so, the qualifications provision is traditionally invoked when it's time to seat a Senator or Representative, not during the course of a term.

Alternatively, might the Senate rely on the provision of Article I, Section 5 that allows expulsion? It states that each chamber may "punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." The juxtaposition of those clauses suggests that expulsion occurs only as a penalty for bad behavior, not on the ground of disability, and no Senator or House member has ever been expelled based on a disability. However, the language is literally disjunctive; it could be read to allow expulsion for any reason, including disability.

Even if the Senate has the power to disqualify or expel a sitting Senator based on disability, the politics will often prevent that from happening. Consider the months-long period earlier this year when Senator Feinstein was absent from the Senate with shingles, thus leaving the Judiciary Committee shorthanded. Republicans refused a Democratic proposal to allow a substitute for her on the committee, thus stalling judicial appointments. Is there any doubt that Senate Republicans would likewise play hardball and refuse to vote to disqualify or expel a disabled Democratic Senator if doing so would affect the balance of power in the Senate? Perhaps a paired disqualification of both a Republican and a Democrat could be accomplished, but even though we currently have one very diminished Democrat and one apparently diminished Republican, that will not often be the case.

Accordingly, I'm left to conclude--as this helpful explainer from 2020 states--that "there is no legal avenue to replace" a disabled Senator or House member. The document just linked concludes by drawing a contrast with the presidency, which, in virtue of the 25th Amendment, "has protection against a president taken down by illness." That's true, but as we have already seen and could see again in 2025, the 25th Amendment provides no usable protection against a president disabled by a gross character defect. We might also discover that it provides no usable protection against a president disabled by imprisonment for a state crime.