The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 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.