Why It Matters
New Jersey Republican Tom Kean Jr. has not cast a vote in the House of Representatives since March 5, drawing attention to a constitutional gray area that leaves no mechanism to remove or replace incapacitated members of Congress. The issue affects constituent representation and legislative operations, particularly as the average age of lawmakers continues to rise.
Unlike congressional deaths or resignations, which trigger clear succession procedures, physical or mental incapacitation of sitting members falls into what legal scholars describe as a weak spot in the foundation of American government.
What Happened
Kean, 57, issued a statement on April 27 thanking colleagues and constituents for their patience during his medical absence. He did not disclose the nature of his condition but said doctors assured him his recovery would be complete and that he would return to Congress soon.
The congressman’s office said his staff has continued handling constituent services and legislative work without interruption. Kean is running in what observers describe as a tight reelection campaign.
By the Numbers
Members of Congress have been absent for extended periods throughout history. South Dakota Senator Carl Mundt did not appear on the Senate floor for almost three years after suffering a stroke in 1969, finally retiring in 1972. Virginia Senator Carter Glass died in 1946, four years after a stroke that left him largely absent from Capitol Hill.
Of the 21 expulsions in congressional history, none have been due to incapacitation, according to the U.S. Capitol Historical Society. The majority of expulsions involved members who supported the Confederacy during the Civil War. The most recent expulsion occurred in 2023 when the House removed Representative George Santos of New York.
Expulsion requires a two-thirds vote in either chamber. The Constitution sets just three requirements for House membership: at least 25 years of age, U.S. citizenship for seven years, and residency in the state represented.
Zoom Out
The absence of constitutional guidance on congressional incapacitation has created challenges for governance. Daniel Schuman, executive director of the American Governance Institute, a nonpartisan organization, said there is no mechanism to remove incapacitated members. They continue serving until an intervening election, with staff maintaining office operations.
Legal scholar John J. Martin wrote in a 2023 Stanford Law Review article that the lack of practical means to ensure uninterrupted representation is antithetical to democracy. He noted that with Congress’s average age rising, the problem may worsen.
Martin proposed a constitutional amendment that would allow members to delegate duties to temporary appointees and establish long-term caretaking procedures. Such an amendment would require approval from 38 state legislatures.
What’s Next
Kean has indicated he intends to return to Congress once his recovery is complete. His staff continues operating his congressional office and managing his reelection campaign.
The constitutional question of how to address prolonged incapacitation remains unresolved. The Supreme Court ruled in Powell v. McCormack that the House cannot bar anyone from being seated who meets the basic constitutional requirements, further limiting options for addressing incapacitated members short of expulsion or voluntary resignation.