President Donald Trump’s proclamation that he was a “very stable genius” caused some mirth on the internet, but in the halls of Congress, Democratic members are not laughing. Instead, they are rushing for the cameras to register their disagreement and outrage. One Congressman, Rep. Brendan Boyle, has even gone so far as to introduce a bill, the STABLE GENIUS Act, which would legally require all future presidential candidates prove their mental acuity.
The bill would amend the Federal Election Campaign Act of 1971 (FECA), attempting to change a law governing election fundraising into one governing the quality of the candidates for whom the people are allowed to vote. The bill’s writers should have spent more time researching the law, and less coming up with a snappy backronym for the title. The bill is a bad fit for the law, and it’s at odds with the Constitution, as well as the entire idea of an elected president.
FECA was passed as a means of making campaign funding more transparent and regulated. It does not regulate who may run for President. It imposes reporting requirements when a candidate raises or spends money. FECA has been amended many times in the years since, with the most recent major changes coming through the Bipartisan Campaign Reform Act of 2002 (BCRA).The laws basic purpose is to require transparency about who is donating to campaigns, and limits as to how much any one person may donate.
As with any law, violations of FECA result in penalties. The section Boyle’s bill would amend, 52 U.S.C. § 30104, covers monetary transgressions, and the enforcement provisions reflect this. The penalties are mostly fines, and the amount of the fine varies based on how much money was involved in the illegal fundraising.
If you’re asking “what does any of this have to do with mental health,” you’re not the only one. FECA covers how candidates may manage their campaign finances; it does not regulate any of the qualities of the candidates themselves. Boyle ignores this problem in the bill, which does not contain any new enforcement provisions. The result, therefore, would be that even if this law holds up in court, the penalty for violating it would be a monetary fine.
As with any new legal requirement, an important question to ask is, “What happens if I don’t?” The FEC has levied some large fines over the years, but mostly on donors, not campaigns. The formulas for penalties are pretty straightforward, but one of the factors involved is the amount of the contributions not reported. What is the monetary value of a medical examination? Boyle’s bill does not say, so the penalty could not be assessed. Even before reaching the constitutional problems, the bill must fail because it contains no mechanism for enforcement. As currently written, it is toothless.
Congress Has No Such Power
The penalty does not fit the offence because FECA is not the proper mechanism for adding qualifications to the Presidency. That is not a fault in our campaign finance laws which, for all their flaws, do accomplish the result of regulating and disclosing campaigns’ donations and expenditures. The STABLE GENIUS Act fails, because there is no method for Congress to regulate who may be elected President.
The Constitution lays out three requirements to hold the Presidency: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”
That’s it. Age, residency, and natural-born citizenship are the only things that may exclude a candidate from taking office if elected, with one minor exception we will discuss later. Congress can no more add a mental health requirement than they could add any requirement beyond those imposed by the Constitution. Likewise, the executive branch may not limit who serves in Congress. The principles of separation of powers and limited government guarantee that rules as fundamental as eligibility for office cannot be altered so easily.
How do we know this? Because Congress did, once, change the office-holding requirements for the Presidency, and it took more than simple legislation. After Franklin Roosevelt was elected to an unprecedented fourth term in 1944, many in Congress wished to codify the two-term tradition that had previously served as a reminder for politicians to restrain themselves in their pursuit of office. In 1947, they did so by passing the 22nd Amendment to the Constitution, which adds the requirement that no one may be elected president who has already served two terms (or one full term and at least half of another). By 1951, three-fourths of state legislatures agreed to the amendment, and it became a part of the Constitution. At no point did anyone propose a simple act of Congress could add the two-term limit; everyone knew a Constitutional amendment was required.
Lock Him Up?
Defenders of Boyle’s bill will likely say that it imposes no new requirement for the presidency, but merely demands that candidates disclose certain information, just as they do now with campaign finance. But there are differences. Campaign finance violations happen all the time, and when they do, the result is a fine imposed on the campaign or the donor. The candidates themselves are not punished, and their eligibility for office is unaffected. Campaign finance regulation governs campaigns, not candidates.
The STABLE GENIUS Act is different. It imposes the examination requirement squarely on the candidate, not the campaign. (It also only requires candidates who are party nominees to comply, arguably giving an advantage to self-funding independent.) And here the enforcement provision, or lack thereof, tells the whole story. As written, the result would probably be a paltry fine that any candidate could ignore, since the monetary value of the violation is $0. But if this technical defect is corrected, then the scenario becomes one where massive penalties, or even jail time, are imposed on a candidate who does not obey the requirement. That sounds more and more like a restriction on the ability to run for office. It also raises jurisprudential questions about whether it would even be possible to imprison a candidate for a campaign violation after the candidate has been elected President.
There are alternatives to this badly written law. If Congress believes that the President is mentally unhinged, they are free to impeach him and remove him from office. Likewise, if the Cabinet believes him to be insane or otherwise incapable, they could remove him from office through the 25th Amendment. And if even these remedies are not enough, Congress could pass a new Constitutional Amendment that, like the 22nd, would add a requirement to the presidency, this one being a mental health exam. Indeed, Congress and the states could change the requirements for the presidency any way they want through the amendment process. But they have to follow the rules, not just pass whatever cleverly titled bill they can squeeze into the legislative calendar.
None of these options will come about any time soon, nor is it likely that Boyle expects his bill to pass in this Congress. It is just another attempt to overturn the results of the election, just as the emoluments suits, the tax returns bills, and the Russia investigations have been. There is no legal theory here, just a primal scream of rage against the failure to dislodge from office the president they find so odious. It supposes that the electorate voted for Trump, a man who has been in public life for decades, because the public did not know who he was, and seeks to correct this kind of “mistake” in the future. The truth is more sobering: the electorate knew. A mental health evaluation, like the one administered last week, would not change this perception.
The STABLE GENIUS Act would not change the way people voted, makes no logical sense as written, and would be unconstitutional if it were revised to actually accomplish its intended result. It will polish Boyle’s #Resistance bona fides, but is otherwise a waste of time and effort. And like the other failed attempts at bringing down Trump, it will prove no substitute for winning the election.