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If a president becomes incapacitated, here’s what the Constitution says

The 25th Amendment answers at least some of the big questions.

- October 3, 2020

The reports that President Trump has contracted the novel coronavirus and is working from Walter Reed National Military Medical Center has launched a thousand “what if” and worst-case scenarios. What if, for instance, the president became so ill that he could not do his job? Given the uncertainties of covid-19, that’s not entirely implausible — so what would happen?

U.K. Prime Minister Boris Johnson’s spring bout with the coronavirus put him in intensive care. In that case, with no formal provision for a temporary transfer of power, Johnson deputized Foreign Secretary Dominic Raab as “first secretary of state.” The extent of Raab’s authority, as the BBC noted, was quite unclear.

What the 25th Amendment says

In the U.S., the 25th Amendment clarifies some — but not all — of these questions. This amendment was ratified in 1967 in the wake of Vice President Lyndon Johnson’s accession to the presidency after John F. Kennedy’s assassination. That left no vice president, something that had occurred more than a dozen times since 1789. The 25th amendment provided a mechanism for filling that vacancy, which proved useful less than a decade later when Gerald Ford replaced Spiro Agnew as vice president.

But the new amendment also addressed ways to deal with the undefined presidential “inability” contemplated in Article II of the Constitution — “in case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president … ” At the 1787 Constitutional Convention, John Dickinson did think to ask, “what is the extent of the term ‘disability’ and who is to be the judge of it?” But as political scientist Michael Nelson observes, “the delegates adjourned for the week and never revisited the matter.”

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The 25th Amendment clarifies Dickinson’s first question: the judge of whether a president is “unable to discharge the powers and duties of his office” is either the president or the vice president and the Cabinet, bolstered if necessary by Congress. The amendment allows presidents to declare their own temporary disability, and then to rescind it — in such cases, the vice president serves as acting president. Presidents Ronald Reagan (in 1985) and George W. Bush (in 2002 and 2007) transferred power to their respective vice presidents for several hours at a time before undergoing surgical procedures requiring anesthesia.

The amendment formalized earlier ad hoc efforts to ensure the continuity of government. After President Dwight Eisenhower suffered a stroke in late 1957 — following a heart attack in 1955 and surgery for an intestinal blockage in 1956 — he wrote to Vice President Richard Nixon to say he would let Nixon know when to step up as acting president and that he would also “be the one to determine if and when it is proper for me to resume” my duties.

So far, so good. If, however, the president cannot make such a declaration, the 25th Amendment empowers the vice president and “a majority of … the principal officers of the executive departments” to make it instead. They certify the president’s inability to serve to the speaker of the House and president pro tempore of the Senate.

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… and doesn’t clarify

Even so, what constitutes that “inability” was never defined — and that was intentional, since the amendment’s drafters were concerned that advances in medical technology could overtake whatever terminology they chose.

In practice, the tipping point seems to go beyond laziness or ineptitude to something closer to literal unconsciousness. As law professor Brian Kalt writes, the amendment “is meant to transfer power swiftly when the president is completely incapacitated. Think coma, serious stroke, severe dementia.” Should the president recover, the decision to transfer power can be rescinded by the president’s own written declaration that “no inability exists.”

By the way, if both the presidency and vice presidency are vacant, the 1947 Presidential Succession Act provides that the speaker of the House serves as president. But the 25th Amendment did not address the question of whether a living vice president could be also be considered incapacitated or how that would be determined.

Another scenario is far more dramatic

Could the president be removed from power without his consent? In this scenario, he does not declare a disability, not because he can’t — but because he won’t. Hours after his stroke, after all, Eisenhower wanted to attend a state dinner, shouting at his family, “there’s nothing the matter with me! I am perfectly all right!”

Section 4 of the 25th Amendment matches a process to this possibility — though to date this has played out only on screen, and not in the real-life West Wing. In this scenario, the vice president and Cabinet send a declaration of disability to Congress. If the president pushes back, declaring no inability exists, the vice president and Cabinet have four days to certify again their belief that the president is unable to do the job.

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At this point, Congress would step in to make the choice. Two-thirds of both the House and Senate must affirm that the president is indeed disabled, handing the presidency’s duties to the vice president. That’s a very high bar. Indeed, it goes beyond what is required for impeachment.

That hurdle means that removing a president sufficiently awake to object to removal is very unlikely to happen. In principle, a flurry of competing declarations could cover Pennsylvania Avenue (in such a case, a senator asked way back in 1841, “was [the presidency] to vibrate between the two claimants?”) But in practice it’s hard to imagine a supermajority of legislators overriding a presidential claim to constitutional competence.

Further, the discretion vested in the vice president and Cabinet is arguably less empowering than paralyzing. Vice presidents from Chester Arthur (President James Garfield) to Thomas Marshall (President Woodrow Wilson) to Nixon have felt that the thinnest of lines separated continuity from coup. Marshall was so concerned about being termed a “usurper” that he was relieved when Wilson’s inner circle lied to him about the president’s debilitating stroke in 1919. “I was afraid to ask about it,” he said, “for fear some censorious soul would accuse me of longing for his place.” The politics are so tricky that Kalt says the title of his 2019 book “Unable” refers not just to a president but to the fact that “a dysfunctional president’s opponents will be unable to use Section 4 as easily as they might like.”

The utility of America’s 25th Amendment, then, rests largely on a president realizing the gravity of his own disability. But it does at least provide a clear process, even if one that we hope will remain hypothetical.

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