When Lawmakers Fall Ill or Go Missing, Congress Has No Way to Remove Them
Why It Matters
New Jersey Republican Rep. Tom Kean Jr. has been absent from the House floor since early March, sidelined by an undisclosed medical condition. His situation has renewed attention to a rarely examined gap in American governance: the Constitution provides virtually no mechanism to remove or replace an incapacitated member of Congress, leaving constituents without a voting representative for an indefinite period.
What Happened
Kean, 57, last cast a House vote on March 5. On April 27, he issued a public statement expressing gratitude to colleagues and constituents, saying his physicians have assured him his recovery will be complete and that he expects to return to work. He did not disclose the nature of his illness.
His absence has prompted a wider examination of how Congress handles — or fails to handle — lawmakers who cannot fulfill their duties. The answer, constitutional scholars say, is that it largely does not. As long as a member is alive and has not resigned, the seat remains theirs.
“Members who are incapacitated — there is no mechanism to remove them,” said Daniel Schuman, executive director of the American Governance Institute, a nonpartisan nonprofit. “They still serve, their staff still operate, they proceed in that position until there’s an intervening election.”
A Constitutional Gray Zone
The U.S. Constitution distinguishes between a vacancy — triggered by death or resignation — and incapacitation, which it addresses barely at all. Roswell Encina, president of the U.S. Capitol Historical Society, noted that seats are generally not declared vacant unless a death certificate is issued, though committee assignments may be shifted in the interim.
A Supreme Court ruling, Powell v. McCormack, established that the House may not block a duly elected member from being seated so long as the person meets three baseline criteria: a minimum age of 25, U.S. citizenship for at least seven years, and residence in the state they represent. Expulsion is possible but requires a two-thirds vote and has occurred only 21 times in congressional history — most of those cases involving members who sided with the Confederacy during the Civil War. No expulsion has ever been carried out on grounds of incapacitation.
Historical Precedents
The phenomenon is not new. Virginia Sen. Carter Glass suffered a stroke in 1942 and died four years later in 1946, having largely vanished from the Capitol while refusing to resign. South Dakota Sen. Karl Mundt did not appear on the Senate floor for nearly three years following a 1969 stroke, eventually retiring in 1972.
Perhaps the most striking case came in October 1972, when a plane carrying two sitting House members — Louisiana’s Hale Boggs and Alaska’s Nick Begich — crashed in the Alaskan wilderness. Begich’s body was recovered; Boggs’ was not. Under the laws of their respective states, both men remained on the ballot and were reelected to seats they would never fill.
As Congress works through a series of must-pass legislative priorities, the absence of even a single vote can carry procedural weight in a closely divided House.
By the Numbers
- 63 days — approximate length of Kean’s absence from House votes as of his April 27 statement
- 21 — total expulsions in congressional history, none for incapacitation
- Two-thirds — supermajority required in either chamber to expel a member
- 38 of 50 states — threshold required to ratify a constitutional amendment addressing the incapacitation gap
- 3 years — how long Sen. Mundt remained absent from the Senate floor before retiring in 1972
Staffers Fill the Gap — Up to a Point
In Kean’s absence, his congressional staff has continued operating the office. Congressional offices routinely delegate a broad range of functions to senior staff, including constituent services, correspondence, and co-sponsoring legislation. One firm boundary remains: only the elected member may cast votes, whether in committee or on the House floor.
“Each member has the prerogative to run their offices the way they see fit,” said Lisa Camooso Miller, a former congressional staffer and New Jersey Republican Party official. “They’ll typically have a direct dialogue with their chief of staff.”
Kean himself acknowledged the role of his team in his April statement, crediting staff with keeping constituent services and legislative work moving and his campaign operation running in his absence.
Zoom Out
The issue extends well beyond one congressman’s medical leave. A 2023 Stanford Law Review article by law professor John J. Martin argued that no practical mechanism currently exists to ensure uninterrupted representation when a lawmaker becomes unable to serve — and that the problem is likely to grow as the average age of members of Congress continues to rise. Martin proposed a two-part constitutional amendment that would allow temporary appointees to assume a member’s duties in cases of incapacitation.
The broader institutional challenges facing Congress — including questions of continuity, representation, and procedural reform — have drawn renewed scrutiny in recent sessions.
What’s Next
Kean faces a competitive reelection contest and has indicated he intends to return to his duties. Absent a constitutional amendment — a process requiring ratification by 38 state legislatures — no structural change to how Congress handles member incapacitation appears imminent. For now, the seat remains his, and his staff remains in place.