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President Donald Trump has tested positive for the coronavirus, and no one knows what will happen next.
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Trump was reportedly only experiencing “mild symptoms” as of Friday morning. But at 74 years old, the president—who has repeatedly downplayed the dangers of the pandemic and refused to take common public health precautions to fight it—is in an age group that leaves him particularly vulnerable to COVID-19. Eight out of every 10 deaths linked to COVID-19 have occurred among adults 65 and above, according to the Centers for Disease Control.
If Trump dies or somehow becomes too ill to continue his duties as president, the United States may end up facing a political and constitutional crisis that resembles a Rube Goldberg machine of hypotheticals. And the nation may be forced to untangle a little-used section of the Constitution: the 25th Amendment.
While the Constitution makes it clear that the vice president would take over if the president dies or resigns, it also declares that the vice president may be put in charge if the president finds himself facing an “inability to discharge the powers and duties” of his office. But the original framers of the Constitution didn’t explain what, exactly, that “inability” looks like.
Although Trump is being taken to Walter Reed National Military Medical Center, where he is expected to remain for a few days, a White House spokesperson confirmed Friday that Trump had not transferred power to Vice President Mike Pence.
The 25th Amendment is meant to clarify how an incapacitated president would temporarily step down, but it’s rarely been tested. And it’s impossible to predict how it would work in an administration presided over by a volatile president, and in a deeply politicized time when any public official could be struck down by a deadly virus.
“The 25th Amendment is something that most lawyers, let alone most lay people, just never think about,” said Sanford Levinson, a constitutional law expert and professor at the University of Texas at Austin Law School. “It is not taught as part of a regular course in constitutional law.”
As a word of warning, the following scenarios all remain remote possibilities. But it’s 2020, and anything is possible.
What happens if Trump dies?
Let’s talk about the most shocking—and likely simplest—possibility first. If Trump dies of complications related to COVID-19, Pence would take over as president. On Friday, a spokesperson for Pence confirmed that he and his wife, Karen Pence, had tested negative for the coronavirus.
But if Pence did die of the coronavirus, the Presidential Succession Act of 1947 dictates that Speaker of the House Nancy Pelosi, a California Democrat, would succeed him.
Pelosi would have to resign from Congress; if she refuses to do that, Iowa Sen. Chuck Grassley would be next in line for the presidency, since he’s president pro tempore of the Senate. Grassley, a Republican, would also have to resign from Congress to assume the presidency.
If all those people can’t or won’t become president, the line of succession runs as follows:
- Secretary of State Mike Pompeo
- Secretary of the Treasury Steven Mnuchin
- Secretary of Defense Mike Esper
- Attorney General William Barr
- Secretary of the Interior David Bernhardt
What happens if Trump is incapacitated?
This is where the 25th Amendment enters the picture. Passed by Congress in 1965, just two years after President John Kennedy was shot and killed, the amendment seeks to ensure that the United States isn’t left leaderless if the president is somehow incapacitated.
In one version of the many worrying possibilities, Trump acknowledges that he is temporarily incapable of doing his job. He would have to declare himself incapacitated, in writing, to Pelosi and Grassley. Pence would take over until Trump is ready to resume the presidency. (If Pence has died, or is similarly incapacitated, Pelosi would again be next in line to lead the nation.) Again, Trump would inform Pelosi and Grassley in writing that he can return to work.
This has already happened a few times in history. For example, President George W. Bush involved the 25th Amendment when he underwent routine colonoscopies in 2002 and 2007.
What happens if Trump is too incapacitated to even declare he’s incapacitated?
This scenario has the potential to become much more complex. Pence, backed by a majority of Cabinet secretaries, would inform Pelosi and Grassley that Trump cannot serve as president. Pence would then take over, and Trump would resume office when he can declare in writing that he’s capable once again.
But the 25th Amendment also allows the president to challenge his vice president’s assertion that he’s incapable. If Trump tries to rebuke his own vice president and Cabinet, Pence and the Cabinet secretaries would have four days to again tell Pelosi and Grassley, in writing, that Trump is incapable.
Then, Congress would have to convene to address the issue within 48 hours. (That would not be easy during a raging pandemic; for example, Utah Republican Sen. Mike Lee declared Friday that he had tested positive for the coronavirus.) Both chambers of Congress then have 21 days to vote on whether Trump is truly incapacitated, and the measure must pass by a two-thirds majority in both chambers. If those votes fail, Trump would remain in power. (Reminder: The presidential election is in 32 days.)
In other words, deciding whether the president is “unable to discharge the powers and duties of his office”—as the 25th Amendment puts it—is in large part a political decision. And presidents have faced devastating illnesses and yet stayed in office: After President Woodrow Wilson suffered a stroke in 1919, his inner circle worked to keep it secret from the public until he left office in 1921. Wilson’s wife, Edith, iced out Wilson’s staffers, Cabinet members, and members of Congress and conducted what’s been dubbed a “bedside government.” (Of course, at the time, the 25th Amendment didn’t exist.)
But wait, there’s more. The 25th Amendment says that the vice president may not need a majority of Cabinet secretaries to back him when he tries to declare the president incapacitated. Instead, he may use a majority “of such other body as Congress may by law provide.”
It’s not clear who would participate in this body. In the past, people have suggested that its members could include Supreme Court Justices, medical doctors, the U.S. surgeon general, or “distinguished public figures,” according to a 2018 Congressional Research Service report.
But what about the election on November 3?
Trump debated former Vice President Joe Biden, the Democratic nominee for president, earlier this week, although they socially distanced on stage and didn’t shake hands. Biden announced Friday that he and his wife, Dr. Jill Biden, that they had tested negative for the coronavirus.
But if either Trump or Biden die or withdraw from the race, that doesn’t mean that Pence or California Sen. Kamala Harris, Biden’s pick for vice president, would automatically ascend to the top of the ticket, according to Richard Plides, a New York University Law professor who wrote about this possibility at the Washington Post. Instead, their respective political parties would need to choose a replacement.
Both the Democratic National Committee and the Republican National Committee have clear rules about how to do that, as Plides explained in a separate interview with the Post. But given that the election is only about a month away, states have very little time to reprint their ballots. It’s almost certain that Trump and Biden’s names would remain on the ballot even if they’re no longer the candidates. That means a man who’s no longer fit to serve—or even dead—could still technically win the presidency.
The Electoral College would then become even more important. Electors usually vote for who their state has chosen, but depending on their state, they’re not all legally required to do so. But it’s likely that most electors will support whatever candidate the national party has coalesced behind, according to Plides.
Now that we’re already all pretty much living in the Twilight Zone, there’s one other question to address: What happens if the national parties are too divided to pick a new presidential candidate?
“There might not be a majority winner in the Electoral College,” Plides wrote. “In that case, the House would choose the president from among the top three vote getters in the Electoral College. In that process, each state delegation gets one vote.”
So is a President Nancy Pelosi really possible?
It’s hard to imagine that Republicans, particularly in such a deeply polarized time, would want to see Pelosi become chief executive of the United States. And some academics have questioned whether the Presidential Succession Act—that law that puts the speaker of the House just two seats away from the presidency—is actually constitutional.
That could give Republicans room to challenge the act and try to stop Pelosi from assuming office. That challenge would, presumably, travel all the way up to the Supreme Court—which is currently operating with just eight justices after the recent death of the trailblazing liberal Justice Ruth Bader Ginsburg.
Senate Majority Leader Mitch McConnell has promised to fill the vacancy left by Ginsburg’s death with Amy Coney Barrett, a judge on the U.S. Circuit Court of Appeals for the 7th Circuit, and it looks like he has the Senate votes to do it. Despite Trump’s test results, McConnell pledged Friday to move forward with the nomination process for Barrett, who has tested negative for the coronavirus.
In the wildest of timelines, Barrett could be confirmed to the Supreme Court by the time the justices would be asked to rule on the Republicans’ hypothetical challenge to the Presidential Succession Act.
Levinson said that scenario would be “jumping the shark” but he played it out anyway.
“Let’s assume it gets to the Supreme Court, and by a vote of 6-3 they declare that the succession in office act is unconstitutional,” he said. “How many people in the country would believe, ‘Oh yeah that’s the Supreme Court declaring what the law is,’ rather than, ‘Republican judges [are] trying to make sure that Nancy Pelosi doesn’t become president even for two weeks’?”
“This would just add to the sense of complete political disintegration,” Levinson said.
