There is a constitutional provision in place to ensure the continuity of government in the event that President Trump is incapacitated during his battle with the coronavirus.
The 25th Amendment of the Constitution sets forth a process by which Vice President Mike Pence can become acting president if Trump is unable to govern due to his illness.
“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,” states Section 3 of the amendment, which was ratified in 1967, less than four years after the assassination of President John F. Kennedy.
Sen. Chuck Grassley, an Iowa Republican, is the president pro tempore of the Senate. Nancy Pelosi, a California Democrat and a frequent Trump sparring partner, is the speaker of the House. Pence and his wife tested negative for COVID-19 as of Friday morning.
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If Trump is unable to declare that he cannot discharge the duties of his office, Section 4 allows the vice president and the cabinet, “a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide,” to make the declaration for him. Their findings would be sent to the president pro tempore of the Senate and the speaker of the House. Pence would become acting president.
Trump could then resume power by writing to the president pro tempore of the Senate and the speaker of the House that he is well again and that “no inability exists.” If the vice president and a majority of the Cabinet disagree with this assessment, they have four days to write to the president pro tempore of the Senate and House speaker to contest it. The disagreement would then be resolved by Congress, with a two-thirds majority of both houses required to prevent the president from resuming his duties.
Invocation of the 25th Amendment in the case of presidential illness is rare and has historically been brief. Under Section 3, Vice President George H.W. Bush was acting president for a few hours on July 13, 1985, while President Ronald Reagan underwent surgery to remove a precancerous lesion from his colon. Vice President Dick Cheney became acting president for a couple of hours twice, once on June 29, 2002, and the other on July 21, 2007, both times as President George W. Bush underwent a colonoscopy.
Each time, the president signed a discharge letter that made the vice president acting president and then a resumption letter reclaiming the powers of the office shortly thereafter without incident.
Presidents have often hesitated to invoke Section 3, worried about the precedent it would set. President Jimmy Carter considered it when he underwent hemorrhoid surgery in late 1978 but ultimately did not. Other presidents have had medical procedures without temporarily transferring power to the vice president.
Section 4 has never been invoked. It was considered after the 1981 assassination attempt on Reagan, who did not have time to declare himself incapacitated before being wheeled into emergency surgery. But Bush never became an official acting president under the amendment during that crisis. It was discussed but not invoked again when there were concerns about Reagan’s memory late in his second term.
Former acting FBI Director Andrew McCabe claimed last year that then-Deputy Attorney General Rod Rosenstein held high-level discussions at the Justice Department about approaching Pence about Trump’s removal under this section, but Rosenstein denied it.
Commentators have occasionally called for using Section 4 to remove Trump based on general unfitness for office. Whether this would make Trump reluctant to invoke Section 3 is unclear.
Trump and the first lady were diagnosed with the coronavirus after adviser Hope Hicks tested positive. Hicks experienced symptoms and was isolated on Air Force One on Wednesday, just a day after the first presidential debate. Trump is said to be experiencing mild symptoms similar to a cold as he quarantines. White House doctors have said that he remains able to discharge the duties of the office.
