President Pence: What is the 25th amendment?
With just under a month until Americans take to the polls, President Trump has been infected with a lethal virus that has claimed the lives of over 210,000 of his constituents and counting. Recently hospitalised, the President’s election campaign has crashed to a halt at it’s most important inflection point. Now discharged a medicated and ill Donald Trump is continuing his medical treatment at the White House. What would the consequences be for American government and politics if the President’s condition took a turn for the worse?
The US Constitution provides a mechanism for the transfer of presidential powers in the event the occupant of the Oval Office is incapacitated. The 25th Amendment stipulates that if a President is unable to serve, either through illness or death, the powers of the presidency will transfer through a hierarchy of successors. That hierarchy is entrenched in federal law through the Presidential Succession Act of 1947 and means that Mike Pence would be first in line to receive the powers of the presidency.
But just what is the 25th amendment? Has it ever been invoked before? And what are some of the potential scenarios facing the US should the worse case scenario materialise?
What is the historical context of the 25th Amendment?
Prior to 1967, the office of Vice President had become vacant 16 times due to death, resignation or succession to the Presidency. Before the 25th amendment there was no constitutional mechanism by which the office of Vice President could be reappointed in any of these circumstances. The ascension of Lyndon Johnson to the presidency, underscored by the assassination of President Kennedy, exemplified the need for a comprehensive constitutional mechanism for the transfer of presidential power. As Vice President Johnson had survived a heart attack so the prospect of a vacant executive loomed in the minds of constitutional scholars and congress.
In February 1967 the 25th amendment to the US constitution was ratified. The amendment contains four sections pertaining to different scenarios. One section in particular was used very quickly following the ratification of the amendment. President Nixon and Congress utilised Section 2 of the amendment to nominate a new Vice President following the resignation of Spiro Agnew. That decision then inadvertently led to new Vice President Gerald Ford’s own ascension to the Presidency.
What would happen if President Trump became incapacitated?
In the event that President Trump became too ill to carry out his duties, there are two processes by which the 25th amendment would facilitate a transfer of presidential powers.
Section 3 of the amendment allows the President to make a written declaration to two congressional leaders, the Speaker of the House of Representatives and the President pro tempore of the Senate. In this event, the powers and duties of his office would transfer to Vice President Pence in an acting capacity.
Section 3 has been invoked on 3 occasions. In 1985 President Reagan invoked the amendment whilst he underwent a colonoscopy. This meant that for 8 hours, George HW Bush was the first Acting President of the US. Since 1985, the amendment was invoked twice by President Bush Jr as he also underwent two colonoscopies.
The second process is by Section 4 of the amendment. This section address the case of a president who is incapacitated but is unable or unwilling to execute the voluntary declaration contemplated in Section 3. In this scenario the Vice President and a majority of cabinet secretaries can declare that the President is unable to discharge the duties of his office. Section 4 is the only part of the amendment that has not yet been invoked, though it has been contemplated on three occasions.
In 1981, President Reagan was shot in an assassination attempt and placed under general anaesthesia in an intensive care unit. He did not have a chance to invoke Section 3. Vice President Bush did not invoke Section 4 as when Reagan was shot he was on an airplane that landed after Reagan woke up from surgery. In 1987, White House Chief of Staff Howard Baker contemplated a possible invocation of Section 4. Reagan’s perceived laziness and ineptitude had stirred concerns about the President’s cogitative abilities. Baker decided against action.
Perhaps more relevant is the case of President Trump in 2017. After firing FBI Director James Comey, Acting FBI Director claimed that Deputy Attorney General Rod Rosenstein led high-level discussions within the Justice Department about approaching Mike Pence and the cabinet about possibly invoking Section 4. It is not clear why Rosenstein considered the President incapacitated in this context.
What would happen if President Trump were to die?
If the President were to become so seriously ill that he passed away, the the transfer of power is much more simple. Section 1 of the 25th Amendment stipulates that upon the death of the President the Vice President shall become President. The office of Vice President would then become vacant until the invocation of Section 2.
Though this process would be simple, what would be much more complex would be the political ramifications of a sitting president and candidate for re-election dying weeks before an election. At the late stage in the election campaign process, almost 10 million Americans are estimated to have already submitted votes with President Trump’s name on the ballot. There would simply not be enough time for the Republican National Committee to choose a new candidate and have each state recast it’s ballots. The likely outcome would be a series of historic and complex legal battles in which Republicans would attempt to transfer Donald Trump’s electoral college votes to another candidate such as Mike Pence.
