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Trump’s illness and the 25th amendment

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If Donald Trump becomes so seriously ill between now and the formal end of his presidency that he literally can’t do even the most basic aspects of the job any more, what happens?

The 25th amendment, adopted in 1967, is supposed to provide an answer to this. The amendment addresses two different situations:

(1) The POTUS anticipates not being able to perform the job temporarily, and hands the office over to the VPOTUS for some period of time, before taking it back. The amendment provides a mechanism for doing this: The POTUS transmits a letter to the Congressional leadership announcing the transfer of power to the VPOTUS, and then sends another one taking the powers of the office back. During the time between the transmission of the two letters, the VPOTUS is the Acting President, and has all the powers of the presidency.

This section works well for straightforward anticipated short-term medical incapacity, such as surgery, and has been invoked by presidents a couple of times in that context. It could in theory work for a more open-ended medical crisis, but that would require a president who was both foresighted enough and insufficiently paranoid to hand over power voluntarily for an extended period of time. In other words, you can pretty much forget anything like that happening between now and the formal end of Trump’s presidency.

(2) In the judgment of the VPOTUS the POTUS is no longer able to perform the job, but the president is either unable or unwilling to acknowledge this. Under these circumstances, the VPOTUS becomes Acting President by transmitting a letter to this effect to Congress, as long as the letter is signed by a majority of the Cabinet (acting cabinet directors count by the way). Note that the VPOTUS becomes Acting President as soon as the letter is received by Congress.

This section should work well in situations where there’s no ambiguity about the president’s incapacity: For instance if the president is literally unconscious, or is otherwise so medically incapacitated that he or she is incapable of contesting the matter. (One impetus for the passage of the 25th amendment was speculation surrounding what would have happened if JFK had survived Oswald’s assassination attempt, but had been left in a coma or otherwise permanently cognitively disabled).

But what if the POTUS disagrees? Then the procedure is this: The POTUS transmits a letter to Congress contesting the Acting President’s letter. At this point, the Acting President and the majority of the cabinet have four days to contest that claim. If they don’t, then at that point the POTUS resumes the powers of the office (Until then the VPOTUS remains Acting President however).

If they DO contest the question, then Congress has 21 days to act. If Congress doesn’t accept the Acting President’s judgment that the Acting President should remain the Acting President, then AT THAT POINT the POTUS resumes the powers of the office. (To do so, both the House and the Senate have to each vote by two-thirds majorities to accept the Acting President’s contention). Note again that the Acting President remains Acting President throughout this whole process, once the initial letter signed by the majority of the cabinet is transmitted to Congress.

This part of the 25th amendment — Section 4 — is supposed to deal with situations in which it’s ambiguous whether the POTUS is actually capable of doing the job, either because of a temporary health crisis short of obvious total incapacitation — like say being on a ventilator in the ICU, while drugged up like Jimmy Page in 1977, but still being semi-coherent enough to tweet etc. — or because of a long-term chronic condition, like for instance getting as demented as Ronald Reagan was getting toward the back end of his presidency.

The practical problems here are obvious: For example, the president is free to fire any or all of the cabinet at any time for any reason, so any kind of attempt on the vice president’s part to invoke Section 4 against the president’s will is going to involve some tricky logistics to put it mildly.

(Yet another problem that has suddenly become evident in the age of COVID is that the 25th amendment has no provision for what happens if the POTUS and the VPOTUS both become incapacitated at the same time).

The bottom line is that while in theory there’s a constitutional mechanism for dealing with a delusional drugged up president trying to run the government out of the ICU, in practice there really isn’t.

This is one of several reasons why Congress should use its power under the 25th amendment to set up an independent body to make these judgments, not subject to the president’s power to remove them at will, which would replace the cabinet as the group that the vice president would have to convince to sign on to transferring power away from the president (“or of such other body as Congress may by law provide.”)

But for now, it’s just another manic Monday.

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