If COVID incapacitates Trump, the 25th Amendment would kick in

October 3, 2020 John Mendoza No Comments


US President Donald Trump announced via tweet early Friday that he’d tested positive for COVID-19.

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The news that President Donald Trump has tested positive for COVID-19 has thrown a monkey wrench into an already fraught election season. It’s raised questions about who would lead the country if the president were to become gravely ill, and when that might be determined. 

At this point, the White House maintains that Trump isn’t experiencing serious effects of the novel coronavirus. But on Friday, the president’s spokeswoman notified the press corps that Trump would be hospitalized at Walter Reed National Military Medical Center and remain there for several days so his symptoms can be monitored. 

“Out of an abundance of caution, and at the recommendation of his physician and medical experts, the president will be working from the presidential offices at Walter Reed for the next few days,” Press Secretary Kayleigh McEnany said. “President Trump appreciates the outpouring of support for both he and the first lady.”

Trump is 74 and overweight, two factors that put him at greater risk of experiencing serious complications from the virus. That has some people wondering what would happen if the president’s condition worsened and he became unable to perform his duties. 

Earlier this week, the world passed a grim milestone when Johns Hopkins University reported that more than 1 million people had died as a result of the coronavirus. In the US the number of deaths linked to COVID-19, the respiratory disease caused by the virus, has surpassed 200,000.

As the coronavirus has spread across the world, health care professionals have warned that certain groups of people, including older adults and people with underlying medical conditions, are at a higher risk of developing serious complications or dying.

The Constitution has a clear answer when it comes to handling a presidential transfer of power: The 25th Amendment. Though the Constitution originally spelled out that the vice president would step in if a president were incapacitated, it was silent on how that moment would be determined. There were, in fact, long stretches when presidents were down and out and a staff member or spouse took over duties. Such was the case after James Garfield was shot and after Woodrow Wilson had a stroke. 

The issue also arose during the tenure of Dwight D. Eisenhower, who at the time was the oldest person to serve as US president. Eisenhower had suffered both a heart attack and a mild stroke during his first term in office. He and his vice president, Richard Nixon, worked out an arrangement in which, if he were incapacitated, Eisenhower would temporarily hand over power to Nixon. And when Eisenhower determined he was well enough, he’d resume his duties. 

It wasn’t until the 1960s, after John F. Kennedy was assassinated, that Congress passed, and the states ratified, the 25th Amendment to the Constitution, which spells out a clear process to ensure a smooth temporary handoff of presidential powers in the event a president can’t carry out his duties. 

To offer more detail on how this works, we’ve put together this FAQ.

What does the 25th Amendment say about the transfer of power?

The 25th Amendment to the Constitution, passed by Congress in 1965 and ratified in 1967 when Nevada became the 38th state to approve it, fills a constitutional gap and lays out how and when power can be transferred to the vice president in the event the president can’t continue his duties. 

Specifically, Sections 3 and 4 of the amendment outline the process. Section 3 addresses the simple and straightforward scenario in which the president determines for himself that he’s incapacitated. It also allows him to determine when he feels he can resume his duties. 

Here’s how it works. The president writes to the speaker of the house and president pro tempore of the Senate to inform them he’s incapacitated. Once that written notice is received, the vice president becomes acting president. 

When the president feels able to resume his duties, he can send another notice to the speaker and president pro tempore indicating this. Once that’s received, he immediately takes back control.

What happens if the president is incapacitated before he’s able to pass the torch to the vice president?

The 25th Amendment also addresses when the president is unable or unwilling to temporarily transfer power to the vice president. This is spelled out in Section 4.

Here’s how that scenario plays out. Instead of the president transmitting his declaration that he’s unable to continue his duties, the vice president and the majority of the president’s cabinet notify the speaker of the house and president pro tempore of the Senate. 

As in Section 3, the vice president immediately takes power on receipt of this declaration. 

When the president has recovered and is able to fulfill his duties, he notifies the speaker of the house and president pro tempore. If the vice president and cabinet don’t disagree with this declaration within four days, the power of the presidency returns to the president. 

What happens if the president doesn’t want to cede power or the vice president and cabinet don’t agree he should get his powers back?

If the president disagrees with the assessment of the vice president and the cabinet members, the question of who should be in power goes to Congress, with the vice president in charge during the interim. Congress must agree in a two-thirds majority vote to temporarily hand over presidential powers to the vice president. If it’s unable to get a two-thirds vote within 21 days, the president automatically retakes power.

One thing to keep in mind is that even if the president were to lose the congressional vote, he wouldn’t be removed from office. So if he disagrees with the assessment of the vice president, his cabinet and two-thirds of Congress, he can repeat the process to regain his powers. 

Has the 25th amendment ever been invoked?

Section 3 has been used three times. President Ronald Reagan invoked this provision once, and George W. Bush did it twice. Each time it was because the president was receiving general anesthesia for surgery. Interestingly, it wasn’t invoked when Reagan was shot in 1981.

What happens if Vice President Mike Pence gets sick?

Things could get messier if both Trump and Pence were to become seriously ill at the same time. The 25th Amendment only spells out how presidential powers are transferred if the president is unable to fulfill his duties and there’s a vice president who can take over. 

To be clear, there’s no indication that Pence is infected with COVID. It was reported Friday that he and his wife had tested negative for the virus. And it’s also been reported that he’s not believed to have been exposed to anyone who has tested positive for the virus. 

But if he were to get sick while Trump is incapacitated, the Presidential Succession Act of 1947 would be what’s used to determine who’s next in line to act as president. Under this statute, that would be House Speaker Nancy Pelosi. But there’s no clear process for such a transfer of power. 

What if Pelosi and Pence disagree about whether he’s capable of fulfilling the duties of the presidency? 

There’s no plan outlined in the Constitution for this scenario. So this is where things could get very messy from a legal standpoint, with two people claiming the right to execute presidential powers. 

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