While initial indications suggest President Trump’s COVID-19 infection is a mild case from which he may fully recover, the timing of this development means the obscure rules governing the incapacity or death of presidents and presidential nominees are potentially in play. It’s important to understand that Trump is both a sitting president and a candidate, and entirely different processes are involved in dealing with a potential crisis affecting his two roles.
Unfortunately, the country has had quite a bit of experience with the death of presidents, with eight dying in office, from William Henry Harrison in 1841 to John F. Kennedy in 1963. The Constitution, as modified and supplemented by amendments and congressional enactments, provides that the vice-president immediately assumes the highest office the moment a president dies (there have been several dramatic tales of the new president being administered the oath of office in strained circumstances, e.g., LBJ being sworn in on the flight carrying JFK’s body back to Washington). Congress has established a line of succession after the vice-president, beginning with the Speaker of the House of Representatives and the president pro tem of the Senate. The 25th Amendment, ratified in 1967, also provides a process for replacing the vice-president after he or she has ascended to the presidency.
The incapacitation of the president is trickier, though a reasonably clear process for dealing with that was set out in the 25th Amendment (prior to its adoption, presidents suffering illnesses occasionally reached an informal agreement to turn over powers to the vice-president or other subordinates). In the simplest application, a president can self-declare incapacity. That has happened three times, all involving surgical procedures, as Business Insider explains:
The first time this happened was on July 13, 1985, when President Ronald Reagan sent a letter directing then-Vice President George H.W. Bush to perform his duties while the president underwent a surgery to remove cancerous polyps from his colon. Bush was acting president from 11:28 a.m. when Reagan was given general anesthesia to 7:22 p.m. when Reagan sent another letter to members of the Senate and resumed his powers.
President George W. Bush had not one, but two instances in which he was deemed “unable” to perform the duties of the president during his two-term tenure.
W. turned over his presidential powers to Dick Cheney for brief periods of time when he underwent routine colonoscopies.
The immensely more consequential procedure set out by the 25th Amendment is the involuntary removal of presidential powers for reasons of incapacity. That has never been invoked, obviously, though there was talk of its provisions during Trump’s impeachment and trial. NPR explains this process:
In such a case, the vice-president and a majority of cabinet secretaries inform the speaker and president pro tempore that the president is incapable of performing his duties, and the vice-president immediately takes over as acting president. The president resumes his duties with “his written declaration that no inability exists.”
And what if a president contests the finding that he is incapable of carrying out his duties?
Again, Section 4: The vice-president and a majority of cabinet secretaries must again declare the president incapable, and must do so in writing within four days. Congress must then convene within 48 hours and has 21 days to decide the issue. A two-thirds vote of both chambers is required to declare the president unable to perform his duties. Short of that two-thirds vote, the president remains empowered.
So it is immensely easier to provide for an orderly (and, in most hypothetical cases, temporary) transmittal of power to the vice-president as acting president if the incapacitated POTUS is cooperative. In addition to the above provisions, the 25th Amendment includes vague language empowering the vice-president to take over after consultation with “such other body as Congress may by law provide” — but Congress hasn’t provided any guidance so far.
President Trump’s situation is even more extraordinary, as he is also the Republican nominee for a second term in an election that is occurring in 32 days. If he were to die or become incapacitated, could he be replaced as the party’s candidate?
The short answer is: not really. Ballots have already been printed in most states, and in some areas people are already voting. As NYU professor Joshua Tucker explains, the Republican National Committee has the power to choose a replacement nominee in a vote that is sort of a mini-convention (as the DNC did in 1972 when vice-presidential nominee Thomas Eagleton withdrew from the ticket), but it might not really have an effect until after the election:
Suppose Trump wins the election, even if incapacitated, or becomes incapacitated after the election but before Inauguration Day. This situation is more complex.
The votes for president are cast, of course, in the Electoral College. The issue would be how an elector should or can cast their vote if the president wins their state but cannot serve.
In some states, the electors are not legally bound to vote for the candidate who has won their state, though of course, that’s what they do in practice. Indeed, some state laws do expressly provide that electors have discretion in this situation. Republican electors in those states would then most likely vote for the candidate the RNC had put forward to replace the president. The electors in any state (for Democratic nominee Joe Biden or Trump) are likely to be strong party loyalists, if the parties have been careful about who ran as electors on their behalf. If that’s the case, they would likely follow the RNC’s lead.
But some state laws addressing the discretion of electors are much vaguer. Still, Tucker thinks the replacement nominee for a winning candidate would inherit his support:
My view is that even if the electors are formally bound by state law to vote for the dead candidate, they will go ahead and vote for the candidate the RNC has identified to replace the president if he cannot serve. It is hard to imagine they would be sanctioned for violating these laws; in any event, the sanctions are so mild no elector would be deterred by them in this situation.
All these contingencies, of course, contemplate an otherwise normal presidential election with a clear winner and loser and everything tidily resolved by the time the Electoral College votes on December 14. The possibility of a replacement Republican nominee and/or an incapacitated but still official incumbent superimposed over the chaos and chicanery so many already fear heading toward November 3 is just too difficult to comprehend.
