Civics Project explains: What can Congress do when a member is too ill to perform anymore?

Q. Can a Member of Congress be removed if they are incapacitated or mentally impaired?

A. Concerns about the absence of Senator Dianne Feinstein (D-Calif.) from Congress earlier this year have raised questions about when an elected representative’s health impairments have risen to a level that prevents them from doing their job. It’s particularly visible now as the Democratic majority in the U.S. Senate is a single vote, so the absence of Senator Feinstein is particularly noticeable.

It’s not uncommon for members of Congress to miss votes. During Presidential campaigns, people are quick to point out the number of votes that candidates who are serving in Congress are missing on a regular basis. Sometimes personal tragedies or health concerns will arise that result in an extended absence as well. When majorities are more substantial and stable, these absences do not have a large effect on legislative outcomes. But with today’s narrowly divided Congress, every vote can matter, and extended absences are becoming important when considering things like judicial appointments or raising the debt ceiling.

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Even if the member is present, mental infirmities can be an issue as well. It’s not uncommon for people to believe that their elected member of Congress is not capable of making rational decisions, but that is usually based on a disagreement with their choices. However, from time to time we do get situations where physical limitations or mental impairment are clearly an issue for a Senator or Representative in Congress. However, the short answer is that no member of Congress has ever been removed for mental or physical incapacity, and there is no Constitutional mechanism to do so.

We have had cases where members of Congress were elected in a November election but were unable to be sworn in because of health concerns or illness. In 1980, Gladys Noon Spellman was elected to Congress from Maryland after suffering a severe heart attack just prior to the general election. As she was unable to be sworn in, her seat was determined to be vacant, and a special election was held. The seat eventually went to long-serving Congressman Steny Hoyer, who rose to Majority Leader in the House.

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Congress can expel members, however, that is rare and typically involves crimes. As we have seen recently, it is not easily done. Once a member has shown up and been sworn into office, that member has never been removed because of incapacitation. In 1969, Senator Karl Mundt (R-ND) missed three years of his term after suffering a stroke. Senate leaders did remove him from committees, but despite calls to resign, he remained in office until 1973. More recently, longtime Senate Republican Leader Mitch McConnell (R-KY) was absent after falling and suffering a concussion in March. Senator John Fetterman (D-PA) missed time this Congress for treatment for depression.

Considering how important a vote can be in Congress, it seems a fair question to ask when the health concerns of a member have risen to the level that makes them incapable of doing the job or returning to the job. Yet, it is no small thing to remove a person who was duly elected from office based on another’s judgement of their abilities or facilities. We do have such a system for U.S. Presidents to be removed from office for incapacity by the 25th Amendment. However, it is a challenging process that has not been used. In Congress, for now, if a member will not resign, voters will have to wait for the next election to replace them.

Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu or reach him on Twitter @kevinwagnerphd

This article originally appeared on Palm Beach Post: Feinstein, Fetterman; What to do when illness stops a Senator