The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Whenever the President is ill, people understandably wonder how our system decides when the Vice-President needs to take over. Article II of the Constitution contemplated this, but without giving much by way of details:
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, and the 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.
But the Twenty-Fifth Amendment (proposed in 1965 and adopted in 1967) provides a more specific rule, not by defining "inability" (or "disability"), but by indicating which institutions make that decision.
[1.] First (section 3), the President can officially announce his inability (for instance, when he recognizes that he is very sick, or is about to go into surgery), and then later announce that he's back:
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
[2.] Second (section 4), the Vice-President plus a majority of the Cabinet can officially announce such inability on the President's part. (The Cabinet includes the Secretaries of State, Treasury, Defense, Justice [i.e., the Attorney General], Interior, Agriculture, Commerce, Labor, Health & Human Services, Housing & Urban Development, Transportation, Energy, Education, Veterans Affairs, and Homeland Security.)
Naturally, on television this arises in highly controversial, dramatic circumstances, but it can equally apply when, for instance, the President falls into a coma without having an opportunity to issue a written declaration:
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 [to my knowledge, Congress has not provided any such other body -EV], 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.
And then when the President says he's ready to come back, his decision generally prevails …
[3.] unless the Vice President and a majority of the Cabinet say nay:
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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.
And then if there is disagreement between the President on one side and the Vice President plus a majority of the Cabinet on the other, Congress decides:
Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
In effect, that means that, if the President says he is able to discharge his duties, he wins if
- the Vice-President agrees with the President,
- half or more of the Cabinet agrees with the President,
- more than one third of the House agrees with the President, or
- more than one third of the Senate agrees with the President.
And that is of course deliberate: The President is the one who has been elected, and it should take (in the event of a dispute) the agreement of many institutions to dislodge him on grounds of supposed inability to discharge the powers and duties of the Presidency. Of course, usually there won't be a dispute, and the much less dramatic items 1 and 2 above control.
What about the courts? I very much doubt that courts will get involved; this is very sort of "nonjusticiable" "political question" on which there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department" (or, here, two coordinate political departments) and "a lack of judicially discoverable and manageable standards for resolving it."
For more, see Ilya's post below, which also deals with what happens to the election if President Trump—or for that matter Vice-President Biden—dies or becomes too incapacitated to be elected.