John Martin has posted this piece, forthcoming in the Stanford Law Review Online. Here’s the abstract:

Aside from waiting for the next election, the U.S. Constitution provides no proper recourse for the incapacitation of a member of Congress. Indeed, there presently exist no practical means of ensuring that representation continues undisrupted for affected constituents. This is problematic and antithetical to our democracy. And with Congress’s average age on the rise, the problem may only get worse.

There has been little discussion within legal scholarship about congressional incapacity, despite its democratic implications. The few existing pieces that have discussed the topic have largely adopted an institutional perspective, focusing on the issue of mass, Congress-wide incapacitation rather than a constituency-minded perspective that focuses on individual instances of incapacitation. This Essay distinguishes itself from existing literature by focusing on the latter. Using the Twenty-Fifth Amendment’s strengths and weaknesses as a blueprint, this Essay provides one of the first attempts to lay out how precisely one could resolve individual congressional incapacity—simply referred to as “congressional incapacity” for the remainder of the Essay—by constitutional amendment.

Specifically, the Essay imagines such an amendment having two sections. The first section would permit members of Congress to temporarily transfer their powers to an interim appointee in times of short-term incapacity, with limitations regarding the residency and party affiliation of said appointee. The second section would create a process for involuntary transfers of powers whenever a member of Congress has a long-term incapacitation but is unable or unwilling to use the voluntary transfer process or resign. This process would be multi-layered, involving the will of the affected constituents, either by direct vote or proxy via state legislatures, an independent board of medical experts appointed and regulated by Congress, and potentially Congress itself. Through this design, the process would ensure that decisions of involuntary transfer would still maintain democratic legitimacy all while minimizing the effects of personal or partisan biases.