If Dianne Feinstein (D-CA) were president, there would be a straightforward solution to her month-long absence from Washington, D.C. The Constitution’s 25th Amendment sets out a procedure for ill or incapacitated chief executives. They can step aside temporarily or, if they choose not to (or do not fully appreciate their inability to serve), the vice president and a majority of the cabinet could temporarily remove them (with a fail-safe procedure involving the Congress). In fact, several presidents have voluntarily turned over the reins of power when undergoing surgery or medical tests, but, other than fictional West Wing president Jed Bartlett, no president either experienced or faced up to a true inability. (Bartlett understood he couldn’t continue in the job during the emotional upheaval of his daughter’s kidnapping.) On the other hand, a temporary removal of a president for being “unfit to discharge the powers and duties of his office” has never been invoked. Informal work-arounds in the final days of Donald Trump and Richard Nixon’s presidencies were put into place to prevent rash conduct, but no formal removal occurred.

Unfortunately, there is no such procedure for an incapacitated senator such as Feinstein. Thus, the major debate is whether she should resign, which she refuses to do. Instead, her “solution” is to relinquish her place on the Judiciary Committee with the hope that its work can proceed. (So far it has not.) The truth, however, is that, even assuming her staff is working 24/7, California is effectively without a second senator. Feinstein cannot attend hearings, participate in debates, or vote. And despite the pandemic having taught us the ease of virtual meetings and proxy voting, the United States Senate, unlike the House of Representative during the pandemic, has not permitted any alternatives to in-person voting. By any true measure, then, Senator Feinstein has functionally vacated her seat.

This issue, of course, extends beyond Dianne Feinstein. Just recently Senator John Fetterman (D-PA) was hospitalized for a month. To my knowledge, no one spoke about him resigning because, I suppose, the expectation was that he would soon return to work, as he has just done. In fact, the only take-away from Fetterman’s condition – happily – was widespread support, and a move toward recognizing that mental health conditions should be discussed more openly. That certainly is a welcome change from the sacking of vice presidential nominee Tom Eagleton from the Democratic ticket for depression in 1972. Fetterman’s inability to fulfill his duties, however, was essentially ignored.

These absences are neither new nor unique. Senator Tim Johnson (D-SD) was out for eight months after suffering a brain hemorrhage in 2006. Senator Ben Ray Lujan (D-NM) had a stroke last year which laid him out for a few months; Senator Patrick Leahy (D-VT) felt the need to temporarily check into a hospital during the last session. And Minority Leader Mitch McConnel (R-KY) was away from the Senate and in rehab for several weeks as a result of a fall. Yet there appears to have been no discussion about the institutional problem that illnesses create. Moreover, as our life expectancy increases, there are apt to be more senators who, even temporarily, become unable to do their job. These absences are not only detrimental to their constituents, but, in a closely divided Senate, they could very well upend the nation’s political balance and a governing party’s legislative agenda.

I want to jump-start a discussion of how to fix this by offering a solution. Aside from the prospect that the Senate could, one day, allow virtual participation for those who have a short-term inability to travel, there needs to be a more permanent remedy for genuinely disabled members. Of course, the threshold issue of what “inability” means remains unsettled, even fifty-five years after passage of the 25th Amendment. This will always be a thorny hurdle, but either Congress or the states can nevertheless enact legislation to fix the problem. Tracking the rules pertaining to a disabled president, there should be a formal procedure allowing a senator to temporarily step aside, or, if necessary, be replaced by a to-be-designated group with authority to determine the senator’s incapacitation. Should either occur, the senator would resign their seat or have it deemed temporarily vacant for a fixed time period (depending upon the circumstances), followed by an appointment by the governor of an interim senator, ideally from the same political party as the ill senator. At the conclusion of the disability or prescribed period, the interim senator would resign, and the original senator, if able, would be re-appointed. If the disabled senator remains unable to carry out their duties, the temporary replacement would continue to serve until no longer needed. Rather than the current approach of hope and pressure, either state or national legislation would routinize a response to a situation like Feinstein’s.

This remedy, or any like it, would of course require legal guardrails to make it work so that partisanship does not intrude, or at least be kept to a minimum. In any event, model laws should be drawn up that can improve my idea so that states would always have two senators and the Senate could function without interruption. If California had such a procedure, Feinstein could step aside temporarily, and do so with dignity.

IMAGE: The U.S. Capitol Dome is seen during an event in Washington, D.C. on April 17, 2023. (Photo by Anna Moneymaker via Getty Images)