But if the vice president is also incapacitated, there is no way to use Sections 3 or 4. When Congress drafted the Twenty-Fifth Amendment in 1965, members acknowledged this gap but consciously decided not to fill it. The amendment was already extraordinarily wordy, and the risk of double incapacity seemed minimal. Fifty-five years later, though, that risk is easier to imagine.
So what would happen if Trump and Pence were so sick that neither could function? Article II of the Constitution lets Congress “provide for the Case of … 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.” In other words, Congress can pass line-of-succession statutes. And it has, most recently in 1947. That law still stands, and it puts the speaker of the House next in line, followed by the president pro tempore of the Senate, followed by members of the Cabinet.
Ronald J. Krotoszynski, Jr.: States are using the pandemic to roll back Americans’ rights
However, Article II provides no procedures for determining “inability.” Imagine that Speaker Nancy Pelosi, believing that Trump and Pence are too ill to function, cites Article II and declares herself acting president. If Trump or Pence replied that no “inability” existed, control of the White House would be thrown into doubt. Courts could settle the matter in due time, but just a few hours of uncertainty could be perilous.
But even if Trump and Pence were undeniably incapacitated, the country could still face a meltdown. As a matter of both policy and law, it is highly problematic that the speaker and president pro tempore are in the line of succession.
The biggest policy problem is that these congressional leaders are often members of the party opposed to the president. A line of succession statute would ideally provide continuity, because a sudden transfer of presidential power from one party to the other would be jarring. The new acting president would struggle for legitimacy (imagine power suddenly shifting from Trump to Pelosi—or, if that doesn’t trouble you, from President Barack Obama to Speaker Paul Ryan). Avoiding such a transfer would produce perverse incentives for White House staff and other members of the president’s political party to cover up or sugarcoat the president’s and vice president’s medical conditions.
During Watergate, after Vice President Spiro Agnew resigned and before Gerald Ford was confirmed to replace him, no one held the office for eight weeks. Democratic Speaker Carl Albert promised that if something happened to President Richard Nixon and Albert became acting president, he would appoint a Republican vice president, then resign. From the standpoint of today’s poisonous politics, such nonpartisan sacrifice seems inconceivable.