October 9, 2020
Last week, the campaign for president displayed for the world to see America’s vulnerabilities. Setting aside a presidential debate that depicted the leader of our country as an unhinged bully who refuses to denounce white supremacy and, more importantly, a man who flaunts health protocols during a pandemic and contracts COVID-19.
What happens if the president’s condition worsens or the vice president tests positive?
The 25th Amendment to the U.S. Constitution provides the framework for succession if something happens to the president or vice president. The amendment was ratified in 1967 and addresses death, incapacitation or resignation of the president or vice president.
The 25th Amendment is about more than succession.
Section 3 of the amendment allows the president to transfer power voluntarily to the vice president. The president can 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.” The vice president immediately becomes acting president. Once the president is fit to resume power, he or she would issue a new declaration and take back control. President George W. Bush used Section 3 a couple of times when he went under anesthesia for medical procedures.
Section 4 is a bit more controversial. Section 4 provides that when the vice president and a majority of a body of Congress declare in writing to the president pro tempore of the Senate and the speaker of the House that the president is unable to perform the duties of the office, the vice president immediately becomes acting president.
The original Constitution also provided that the vice president steps in when the president is incapacitated, but it said nothing about how the president’s incapacity was to be determined.
That loophole, prior to the enactment of the 25th Amendment, permitted President James Garfield’s advisors to remain in control for 79 days after he was shot and President Woodrow Wilson’s wife to essentially run the country after Wilson had a stroke.
As Norman Ornstein, of the American Enterprise Institute, wrote in the Washington Post, “the 25th Amendment has its own gap” that would become problematic if both the president and vice president became incapacitated at the same time.
Ornstein uses President Trump’s recent illness as an alarming example. If the president and vice president became ill and their conditions worsened - the 25th Amendment provides no solution. The amendment provides for replacing the vice president and dealing with a presidential disability, it did not contemplate or provide a road map if both the president and the vice president were incapacitated.
Ornstein writes, “There is no path in law or the Constitution to determine who has presidential authority if both are, say, on ventilators.”
The election also creates potential problems. The 20th Amendment provides for the vice president-elect to become president if the president-elect dies or is debilitated. However, that is after the election. What happens if a candidate for president dies immediately before the election?
The Constitution provides that the president-elect shall assume office on Jan. 20. Can a dead person be elected president? The answer is simple, yes.
In each state voters will turn out on Nov. 3 to vote for a presidential ticket, president and vice president. What their votes actually do is determine which candidate wins the state and receives the state’s electors to the Electoral College.
Although the U.S. Supreme Court recently said electors can be bound to the candidate that won their state, the decision does not apply when the candidate dies before the election.
If no one gets a majority in the Electoral College, the election goes to the U.S. House of Representatives to decide.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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