When President Donald Trump’s valet and Vice President Mike Pence’s spokesperson tested positive for the coronavirus last week, it was unnerving on many levels. One is legal: If Trump and Pence were incapacitated by COVID-19 simultaneously, the result could be a full-scale constitutional meltdown.
The good news is that passing a new statute could eliminate this risk. The bad news is that Congress—not known for being proactive—would have to act now, before there is a problem.
The potential for trouble is much lower if the president alone gets sick; the Twenty-Fifth Amendment could handle the situation smoothly. A president racked with pain and struggling to breathe 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 could not invoke Section 3 (say, if he were intubated and heavily sedated), 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, Cabinet, and two-thirds of the House and Senate disagreed.
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.
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.
The biggest legal problem with the current succession law, according to many scholars, is that it is unconstitutional for legislators to be in the line of succession. Article II restricts the line of succession to “officers,” but elsewhere the Constitution specifically distinguishes members of Congress from “officers of the United States.” These constitutional doubts led Congress to take the president pro tempore and speaker out of the line of succession in 1886. When the current law was debated in 1947, Congress ignored the constitutional question and put them back in.
It is all too easy to imagine, in the throes of a crisis, that members of a president’s party would latch on to this constitutional interpretation. They would argue that the secretary of state was the rightful acting president. Similarly, in the case of a president or vice president claiming that he is not incapacitated, the president’s party would back his claim to retain power. The country, already deeply divided, might descend into disorder before the courts could calm the waters (if they could do so at all). Two people would be claiming the White House, rallying their millions of respective supporters and possibly even giving conflicting orders to the government and the military.
The solution is legislation. Although Article II provides no procedures, it does empower Congress to create them (with some help from the Constitution’s necessary and proper clause). The simplest path would be a Double-Incapacity Act with procedures that parallel the Twenty-Fifth Amendment’s. The only difference would be that, if the vice president is unavailable, his or her 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 next person up) transfer power to the next NPU and retake it. Mirroring Section 4, the new law could empower the Cabinet and the NPU to declare unable the president or any NPU designated as acting president. Just like Section 4, it could kick disputed cases to Congress and require a two-thirds majority to keep the NPU in control.
Practically speaking, if both parties supported such a law, it might represent a bipartisan affirmation of the current line of succession. Perhaps that would take the wind out of the sails of any challenge to a speaker’s accession. Even better would be simply taking the speaker and president pro tempore out of the line of succession—acting in the statesmanlike spirit of Carl Albert to protect the country from this needless risk of civil disorder.
We shouldn’t get too caught up in such wishful thinking, though. Yes, Congress could head off these problems by passing a law. But Congress moves slower than viruses do. A crisis like the one I have described here could erupt in a matter of days. Unless Congress decides to be proactive, we just have to grit our teeth and hope for the best—in this case, that White House staffers become more diligent about their mask wearing and hand-washing, because that may be all that separates this country from a constitutional catastrophe.