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May 20, 2020

Ask the expert: What happens if Trump and Pence catch COVID-19 at the same time?

Brian Kalt, professor of law and an expert in constitutional law of the presidency, answers questions about what would happen if the president and vice president of the United States become incapacitated simultaneously.

What is the transition of power if both President Donald Trump and Vice President Mike Pence become incapacitated by COVID-19 simultaneously?

The normal transition is for the vice president to take power if the president becomes incapacitated. If the vice president is also incapacitated, then the speaker of the House of Representatives (Democrat Nancy Pelosi) takes power. Trump or Pence would retake power when they recovered.

Does the 25th Amendment cover this situation?

Yes, if it is only the president who gets sick. In that case, a president who is ill could use Section 3 of the amendment to transfer power to the vice president. The president could then return to power whenever he declared himself able. If the president was unable or unwilling to invoke Section 3, the vice president and Cabinet could use Section 4 of the amendment to transfer power to the vice president. The president would retake power four days after declaring himself able, unless the vice president, the Cabinet and two-thirds of the House and Senate disagreed. But if the vice president is also incapacitated, there is no way to use the 25th Amendment.

What would happen if the vice president were incapacitated, since the 25th Amendment would be unavailable?

Article II of the Constitution specifies that the line of succession statute would kick in. The current law designates the speaker of the House of Representatives as next in line. But Article II doesn’t provide any standards or procedures, so there would be chaos and confusion if the speaker said that the president or vice president were incapacitated, but they disagreed. There is also a strong argument that it is unconstitutional for legislators, like the speaker, to be in the line of succession, which brings potential for further chaos if the speaker tried to take power. 

What can be done to avoid this from happening?

Congress can pass a statute to provide procedures and eliminate the risk of confusion. A new statute could also take the speaker and president pro tempore of the Senate (Iowa Republican Chuck Grassley) out of the line of succession and avoid any constitutional problems.

Is it likely that Congress will take this action?

No. Congress would have to act now, before there is a problem, but Congress is not known for being proactive.

Why did the Founders and Congress leave these gaps in the law?

When Congress drafted the 25th Amendment in 1965, members acknowledged that it didn’t cover situations where there was no vice president, but they consciously decided not to fill the gap. The amendment was already extraordinarily wordy and the risk of double incapacity seemed minimal. Fifty-five years later with COVID-19, that risk is easier to imagine.

What would the new statute look like?

The simplest thing to do would be for the statute to create procedures that parallel the 25th Amendment’s. The only difference would be that if the vice president is unavailable, his role in the amendment’s processes would be filled by the NPU — the “next person up” in the line of succession. Mirroring Section 3 of the amendment, the new law could let the president (or, if he was already incapacitated, whoever is the acting president) transfer power to the NPU and then retake it when he recovers. Mirroring Section 4, the new law could empower the Cabinet and the NPU to declare the president or acting president unable. Just like Section 4, it could kick disputed cases to Congress and require a two-thirds majority to keep the NPU in control.

Is there historic precedent for a challenge to the speaker’s succession?

The first succession law, enacted in 1792, put legislative leaders in the line of succession; it passed over the objections of those who thought it was unconstitutional. In 1886, those constitutional concerns led Congress to take legislative leaders out of the line of succession and use just the Cabinet. That law was replaced in 1947 with our current one, but scholars have continued to express concern about the potential constitutional problem. We have never needed to go past the vice president in the line of succession, though, so the question has never been tested.

If Congress decided to take the speaker and president pro tempore out of the line of succession, who do you think would be the better third person in the line of power?

For the sake of both avoiding the constitutional problem and providing better continuity, I would suggest returning to the 1886 law, which puts the Cabinet in the line of succession, starting with the secretary of state.

By: Kim Ward

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