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Trump’s Coronavirus Diagnosis and the 25th Amendment



The most important provision is the 25th Amendment. The original constitution provided that the vice president intervene if the president is incapacitated, but did not say anything about how the incapacity of the president should be determined. As a result, we had long stretches (when President James Garfield was shot; when President Woodrow Wilson had a stroke) that the Vice President should have been responsible, but instead the staff or the President’s spouse ruled. The 25th Amendment, made in the 1960s after the assassination of John F. Kennedy and at the height of the Cold War, ultimately provided a clear process aimed at ensuring that there was always a hand on the helm.

Section 3 of the amendment allows the President to voluntarily transfer power to the Vice President. To that end, Trump would temporarily send a formal notice to the Speaker of the House and the President of the Senate stating that he is “unable to perform the powers and duties of his office.”

; Upon delivery of this statement, Vice President Pence would become President-in-Office – all of those powers and duties would be his. Whenever Trump felt himself fit again, he would send a new statement and immediately take back control.

The appeal to Section 3 rests entirely with the President. Presidents are generally unlikely to use this provision for a variety of reasons (a desire to project strength, maintain continuity and calm, optimism about one’s health, denial of one’s health, paranoia about loss of power) unless absolutely necessary. Section 3 has only been used three times: once by President Ronald Reagan, twice by George W. Bush. Each time the president was given general anesthesia for a few hours for surgery. It was not called when Reagan was shot and nearly killed in 1981; it certainly should have been, but the President and his aides never seriously considered it.

Recognizing that the president may be incapacitated but unwilling to admit it – or more problematic not being able to admit it because he is unconscious – the 25th amendment also includes section 4, which transfers power without the consent of the president becomes. Instead of Trump delivering his statement that he is “unable”, Pence and a majority of the core cabinet members (there are either 14 or 15; it is unclear whether Chad Wolf, the only incumbent cabinet member, this can legally participate). As in Section 3, power immediately passes to the Vice President. If Pence and the cabinet members invoked Section 4, whenever Trump felt able to resume his duties, he would send a statement to that effect and initiate a four-day wait, during which Pence would remain in control. If Pence and a majority of the cabinet did not contradict Trump’s statement within those four days, Trump would regain his powers. If Pence and the Cabinet disagreed, the question would be referred to Congress, with Pence taking responsibility in the meantime. Unless both chambers agreed by a two-thirds majority within 21 days that Trump was unable to serve, Trump would regain power. But even if Trump lost the congressional vote, he would not be removed from office and he could try again and again to regain his powers through the same process.

Section 4 stacks the deck heavily in favor of the president in a controversial case – impeachment requires far fewer ducks to be targeted in a row against him. This is done on purpose. Section 4 is about transferring power quickly and safely when the president is completely incapacitated (such as when he is in a coma), but protecting the president from losing power in all but the clearest of situations. Because of the difficulty of appeal, Section 4 ensured that it would not be used against a president who was merely “unsuitable” for office. It’s really about incapacity to act – the unmanned rudder.

The 25th amendment has an important limit: it only works when the president is incapacitated and when there is a vice-president. The authors of the amendment realized that they were leaving a big hole – what if both the President and Vice-President are incapacitated? – but they believed the amendment was too long and complicated.

So far, there is no evidence that Pence has been exposed to anyone who tested positive for the virus, and the vice president tested negative on Friday morning. But if he gets sick while Trump is doing it and incapacitated, the Presidential Succession Act of 1947 says House Speaker Nancy Pelosi comes next. However, the constitution does not provide for any process or standards for such a transfer of power. What if Pelosi and Pence disagree about his condition? What if Secretary of State Mike Pompeo objects, making the numerous serious arguments that scholars and lawmakers have made over the decades that it is unconstitutional to include Congressional officials under inheritance law? This could put us in the unacceptable position of two people claiming to be in the power of the president with no clear answers as to who is right – possibly with a simultaneous election or with a subsequent contestation of the votes in court.

The constitution and inheritance law are based on the notion that our top officials will act reasonably and in good faith, taking into account the need for steady leadership of the country. But these qualities seem to be less available today than they were in 1787 and 1967. They are even less available a month before election day. Again, we shouldn’t outdo each other. However, when you know what the threat of danger is, not only is it extremely important that Trump is currently quarantined, but that Pence remains virus-free and generally healthy.


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