Election

What Happens if Trump Becomes too Incapacitated to Serve, Drops Out of the Election, or Both?

Some possible answers to these questions from leading experts on the subject.

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Donald Trump and First Lady Melania Trump.

 

Last night, President Trump announced that he and his wife Melania have both tested positive for the Coronavirus. This has led to speculation about what might happen if Trump becomes too incapacitated to continue serving as president, has to drop out of the election, or both. The former issue is governed by the Twenty-Fifth Amendment. Legal scholar Brian Kalt, who literally wrote the book on this subject, addressed the relevant issues in a recent Washington Post op ed:

The law is mostly clear about how to handle a president who falls seriously ill, but it's not hard to envision a legal scenario that spins out of control quickly.

The key provision is the 25th Amendment…. Enacted in the 1960s after John F. Kennedy was assassinated and at the height of the Cold War, the 25th Amendment finally provided a clear process, with the aim of ensuring that there is always a hand at the helm.

Section 3 of the amendment allows the president to transfer power voluntarily to the vice president. To do this, Trump would send formal notice to the speaker of the House and president pro tempore of the Senate, declaring that he is "unable to discharge the powers and duties of his office." Upon transmitting this declaration, Vice President Pence would become acting president — those powers and duties would all go to him. Whenever Trump felt able again, he would send a new declaration and immediately take back control…..

Recognizing that the president might be incapacitated but unwilling to admit it — or, more problematically, unable to admit it because he is unconscious — the 25th Amendment also includes Section 4, which transfers power without the president's consent. Instead of Trump transmitting his declaration declaring he is "unable," Pence and a majority of the core members of the Cabinet do so…. As in Section 3, power immediately transfers to the vice president. If Pence and the Cabinet members did invoke Section 4, then whenever Trump felt able enough to resume his duties, he would send a declaration to that effect, kicking off a four-day waiting period during which Pence would stay in control. If Pence and a majority of the Cabinet did not disagree with Trump's declaration within those four days, Trump would retake his powers. If Pence and the Cabinet did disagree, the question would get kicked to Congress, with Pence in charge in the interim. Unless both chambers agreed by a two-thirds majority, within 21 days, that Trump was unable to serve, Trump would retake power. But even if Trump lost the congressional vote, he would not be removed from office, and he could try again and again to retake his powers using the same process.

Section 4 thus stacks the deck heavily in the president's favor in a contested case — impeachment requires far fewer ducks to be aligned in a row against him….

The 25th Amendment has an important limit: It operates only when the president is incapacitated and when there is a vice president. The drafters of the amendment recognized that they were leaving a big hole — what if the president and vice president are both incapacitated? — but they believed that the amendment was too long and complicated as it was.

In sum, things are relatively clear unless either there is a disagreement between the president and VP/majority of the cabinet over whether the president is incapacitated, or if the vice president is also incapacitated, in which case the Speaker of the House of Representatives might potentially step in, but the process for determining when that is appropriate is murky, at best.

By contrast, things are pretty simple if  the president dies. In that event, the VP takes over, and if he cannot, then the Speaker of the House succeeds to the office.

What about the fate of the election if Trump dies or has to withdraw from the race, due to illness or incapacity? That is murky, as well. Rick Hasen, one of the nation's leading election law scholars runs through the possibilities in this article:

The problem here is that ballots are already out and millions of people have already voted. At this point it seems impossible for the parties to come up with a new name to replace Trump or Biden on the ballot without starting the whole election process over. This is not practically possible about a month before Election Day, and becomes less possible by the day. Congress could pass a bill delaying the election, but it is almost impossible to believe they would.

While things are far from certain, what's most likely is that the election would take place on time with the deceased or incapacitated candidate's name on the ballot. Then there would be a question if legislatures would allow presidential electors of each state to vote for someone other than the deceased candidate, such as that candidate's vice presidential selection, depending on who won the state. Only some state laws provide for this eventuality, allowing the votes for a named replacement to be counted. Some states have adopted the Uniform Faithful Presidential Electors Act, which leaves the question open…

Another alternative is that individual state legislatures would seek to appoint electors directly. Here's where it gets especially tricky. Article 2 of the Constitution gives state legislatures the power to set the "manner" for choosing presidential electors. States have given that power to voters to vote, but they can take it back. It's probably too late to take it back now that voters have started voting, but there's a provision of the federal Electoral Count Act that lets state legislators choose electors when voters have not made a choice (for whatever reason). Could a Republican legislature—for example, Pennsylvania's—say that an election with one deceased candidate on the ballot is not really an election where voters have made a choice, and try to appoint electors directly? They could try, though it is quite uncertain whether the courts and Congress would let them succeed…..

In short, there would be a ton of uncertainty if we faced such a tragedy as a presidential candidate dying or becoming incapacitated during this period.

Hasen's analysis is, to say the least, far from entirely reassuring. There should be better and more clear procedures for handing this kind of situation.

NEXT: More details on Nixon and Kennedy's final appointments.

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  1. Mike “Curing Queers with Amperes” Pence becomes President if Trump should become medically incapacitated.

    1. If President Trump is disabled, Pence becomes only Acting President until the disability ends or Trump ceases to be President. If Trump died, then Pence would become President.

      1. I quit working at shoprite and now I make $65-85 per/h. How? I’m working online! My work didn’t exactly make me happy so I decided to take a chance on something new…OPk after 4 years it was so hard to quit my day job but now I couldn’t be happier.

        Here’s what I do…>> Click here

    2. “Mike “Curing Queers with Amperes” Pence becomes President if Trump should become medically incapacitated.”

      So he’s been President since 2017, then? Despite Trump’s vaunted ability to identify animal cracker drawings?

  2. Nice academic post but no one is going to die from a fake hoax virus that has a 99.9% survival rate and even then is almost never the actual cause of death.

    1. A million dead people, more or less, disagree with you.

      1. “from COVID” or “with Covid”?

        1. Either way, they won’t be voting for Trump.

          1. Right, dead people vote Democrat.

            1. Right, and BRAIN DEAD people vote Republican.

      2. I understood it was 200 million. Surely Joe would never lie to me!

        1. “I understood it was 200 million.”

          you understood incorrectly. Shocker.

          1. He was citing Joe Biden, as he said.

    2. Fox news has a new headline for you, the hoax is real!

      1. The actual hoax was that Trump said the virus was a hoax. Biden not so long ago ran an ad to the that effect, that cut out most of a minute from Trump’s remarks between his mention of the virus, and later using the word “hoax” to describe something unrelated.

        1. “Hoax” is MollyGodiva’s word. Take it up with her.

        2. No, Trump said that the virus was a hoax.

          Democrats: “Coronavirus is a really serious issue. We have to take major precautions or hundreds of thousands will die.”
          Trump: “That’s the Democrats’ latest hoax to bring me down.”
          Every person who understands the English language and is honest: “Trump called coronavirus a hoax.”
          Trumpkins: “Nuh-uh!!!! He never said it was a hoax!”

    3. Unfortunately (for the country, whatever you think of Trump) the fatality rate for old, overweight men is quite a bit higher than .1%.

      1. It is about 5%, but not a lot of them are President of the US. He just might get good medical care.

        1. Which is great, if he were inclined to listen to people who know more than he does.

  3. Think of the hundreds or thousands of lives that are now saved since Republicans have put their masks on.

  4. POTUS got the ‘rona, but he will come through it with barely a scratch and then win re-election, while also dealing a devastating psychic blow to the Dem’s hoax virus narratives.

    As a bonus, he’ll probably get benefit from HCQ treatment and other treatments that Dems have rabidly politicized at the expense of science.

    1. “POTUS got the ‘rona, but he will come through it with barely a scratch and then win re-election, while also dealing a devastating psychic blow to the Dem’s hoax virus narratives.

      As a bonus, he’ll probably get benefit from HCQ treatment and other treatments that Dems have rabidly politicized at the expense of science.”

      Poe’s Law.

      1. Poe’s Law: The Onion hardest hit [but kudos to Babyon Bee for the 9th Circuit Ginsberg resurrection]

      2. Don’t forget the media gem when they cherry picked the “bleach comment” (which was clearly a stumbled upon moment) out of an entire long press conference and then gave it visibility over the next 7 days with the gaul to report later that people might have actually tried it after you know reporting on it incessantly.

    2. “POTUS got the ‘rona, but he will come through it with barely a scratch”

      Absolutely, because he’s so young and healthy. Coronacooties only affects old men with health issues.

    3. ” he’ll probably get benefit from HCQ treatment”

      So he’ll get heart problems to go with trouble breathing?

      1. Yes, a drug widely prescribed for decades is NOW, suddenly, a heart attack waiting to happen. :rolleyes:

  5. Since Trump is to blame for all things Covid and only Trump is to blame (no one else has any culpability for anything according to most here) he probably deserves to die of Covid and have his corpse tried for something something Russia something.

    1. He’ll go away by himself when the weather starts to get warmer. Say, hot enough to melt brimstone…

  6. Horace Greeley, though a Republican, was nominated by the Democrats in 1872. He died after the election but before the electoral college met. The electoral votes were scattered about but he lost no matter what.

  7. The same people who were rending their garments for us to respect RGB are now cracking wise about Trump literally a few days later. Man memory is short in politics but this must be a new record.

    1. There is a 3% risk of the president dying, and it is something everyone should take very seriously. Please wear a mask so the same thing doesn’t happen to you.

      1. The mask protects OTHERS from you. It does little for you personally.

    2. “The same people who were rending their garments for us to respect RGB are now cracking wise about Trump literally a few days later”

      RBG served this country for 27 years. DJT hasn’t served anybody a day in his life.

  8. Let’s hope Trump recovers quickly.

    Let’s also hope he learns something about belligerent ignorance, lethal recklessness, and at least simulating adulthood from this.

    1. You’re suggesting a capacity to learn which is not known to exist.

    2. “Let’s hope Trump recovers quickly.”

      That’s very big of you, considering how insufferable he’s be if he recovers quickly.

  9. So Trump runs around in public maskless, scoffs at mask wearing, and catches covid.

    I’ll bet the people who say Trump wasn’t doing enough to encourage mask-wearing sure feel silly now.

    1. To be fair ‘the experts’ have been all over the place in terms of mask wearing. Its not just Trump vs everyone else on the issue like the media narrative implies.

      1. Again, not masks; “cloth face coverings”.
        Per the CDC, equally effective against the Communist Chinese virus, but ONLY the Communist Chinese virus whether made from a single layer of cheesecloth or from a double layered turkish towel.
        For the “real” flu, and any other germ or virus, not enough evidence to make a recommendation on masks, even for asymptomatic high risk individuals.

      2. What the recommendations were, what they were informed by at the time, and why they’ve changed as we’ve learned more about COVID, has been explained dozens upon dozens of times.

        Trump on the other hand, has casually dismissed COVID from day 1 and encouraged people not to wear masks, and made fun of those who did.

  10. What an epic troll of the Democrats! The 11-dimensional chess game shows the endgame… Trump plans to die in office, thus dissipating all the D’s election strategy of running against Trump instead of for Biden. AND he’s already submitted his ballot in Florida…

  11. “VP takes over, and if he cannot, then the Speaker of the House succeeds to the office”

    Without reference to either Trump or Pelosi, this is bad idea that always raises the possibility of a change in party control and other complications.

    Its even worse that the next one in line is the president pro tem who is always a very elderly senator, present one is 87. The one who was in office on 9/11 was 99!

    Before 1947, it was Secretary of State and then the remainder of the cabinet in reverse order of creation. This is better, at least cabinet officers are appointed by the winner of the last election and represent political continuity.

    Impossible to change now but it would be a good idea. Its just a statute, easily done.

    1. Bob, I’m glad we at least agree that not everything in the Constitution is a good idea. Even if we don’t always agree on what.

      1. Technically, the Constitution merely specifies THAT there be an order of succession. Beyond that the vice President is next in line, it leaves it up to Congress to specify who it goes to after that.

        I suppose it’s not shocking Congress thought it should go to a Congressional leader next.

        1. Well, maybe not. Apparently the Constitution calls for “Officers”. Congress inserted the Speaker and the President Pro Tem of the Senate in the line of succession. The are arguably not “Officers”.

          Here is Article II, Section 1, Clause 6 of the United States Constitution :

          Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected

          The question then is whether the addition of these two members of Congress, in the Presidential Succession Act of 1947, is Constitutional.

          1. Whether they’re relevantly “officers” or not, we’re talking legislation, not Constitution. That’s my point.

            1. Moving to elected people before unelected still makes more sense.

              1. Yeah, I’m not arguing against that aspect of it, just pointing out that, if you don’t like the order of succession, blame Congress, not the Constitution.

                Honestly, were it up to me, I’d have each President designate a list of 5 or so successors before the election, who they could bring into their administration, and keep up to speed. Add a vice-vice President, and a vice-vice-vice President, and so forth. Then run as a team.

                Prevents death being a way to change policy, which you really don’t want in a democracy.

                1. “Prevents death being a way to change policy”

                  In the sense that your plan does nothing of the sort. What it does is present an opportunity to transfer the executive power to someone NOBODY voted for.

                  1. Well, except of course the senators who confirmed that person to office.

        2. “I suppose it’s not shocking Congress thought it should go to a Congressional leader next.”

          Of course, it’s only law because Truman did, too.

  12. Fun fact; per section four, the cabinet is just the default group to determine capability to serve. Congress may, by law, designate another body. Say if the dems sweep the senate and keep the house, and get the White House, they can legally and constitutionally designate the DNC as the arbiter of future president’s competence. Behold:
    Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

  13. Do you think Average Joe and Middle America Mary are as ghoulishly gleeful as the Left or turned off by their joy?

    1. I mean people do seem to have a short attention span what with them having gotten away with the lockdown no wait its time to riot while packed together like sardines now its back to lockdown mode but I mean you have to seriously dense to not note the disconnect between the somber scolds for RGB one or two days ago vs the mardis gras atmosphere on twitter and leftwing commentators even here now…right?

      1. Where are you seeing “mardis gras” (BTW, your French is terrible).

  14. I’m deeply touched by the rationale here. If Trump is unable to serve, by reason of… While ignoring Fumbling-bumbling-pedo Joe Bidens obvious ‘gaffes’, mental issues.

    1. Biden isn’t as sharp as he was 5-10 years ago, but after the debate, I don’t want to hear about his “mental issues”. He’s an innumerate, intemperate liar, but a mentally competent one.

      1. “He’s an innumerate, intemperate liar, but a mentally competent one.”
        Throw in an ability to identify animals by looking at pictures of their animal crackers, and you could be talking about Trump.

  15. The flaw in the 25th amendment might be those surrounding the President. We know that the President and his family are very tight lipped and it is possible that the President could be incapacitated and the American public would not be informed. We still don’t have the full story on a possible earlier stroke (November 2019). We know that Woodrow Wilson and his wife hide the effects of Wilson’s stroke. I believe we could expect the Trump family to do the same. They have in fact because we don’t really have the full story on President Trump ‘s medical condition. So it might not be VP Pence in charge but rather the Trump clan.

    1. We know that SOMEBODY thought he needed a competency test.

  16. With regard to the election, dead candidate don’t bring out the voters. I suspect that many Trump voters would stay home in the event he dies or drops out. Joe Biden would likely win big and the issue of the electoral college delegates would be moot.

  17. State level parallel.
    Missouri governor Mel Carnahan dies in a plane crash weeks before election for the Senate. “Still with Mel” is the new campaign slogan, and he posthumously against John Ashcroft. The legislature then appointed Jean Carnahan to the Senate, until the state constitution required election could occur.
    Is there any wonder why John Ashcroft was always in such a foul mood during his time as Attorney General.

    1. Yes, but it did not help Democrats in Minnesota when Paul Wellstone dies. Trump is behind and no matter his illness ends I think he will lose.

  18. Donald Trump for unemployed former reality-tv show character.

  19. Isn’t this just covered by the 20th Amendment? Section 3: “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.”

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