President Donald Trump’s positive test for the coronavirus set off cascading effects through the chain of government – and raises a raft of constitutional issues should he endure a difficult illness or lose his battle with the disease.
The Constitution and laws enacted by Congress provide for a line of succession, as well as provisions for how to proceed if the president becomes incapacitated. A web of party and state election laws make provisions for how to proceed if a candidate must be replaced on the ballot.
The Election Day itself is fixed by law, and can be moved only by an act of Congress.
But there are ambiguities in all areas – from national party rules to state election law and even the line of succession – providing multiple avenues for chaos just 32 days before the Nov. 3 election.
Who is in charge of the country now?
President Trump continues to be in charge, both in title and effect. The White House reports that he has mild symptoms, and there were media reports that he was lethargic on the way back from events Wednesday and Thursday.
The White House physician says Trump and First Lady Melania Trump ‘are both well at this time.’
The president cancelled a scheduled rally and has a single event on his schedule. He hasn’t tweeted since announcing early this morning he tested positive for COVID-19.
White House chief of staff Mark Meadows told reporters he spoke to the president and that Trump immediately pegged him with inquiries about the country. ‘His first question to me this morning was: How is the economy doing? How are the stimulus talks going on Capitol Hill?’ he said.
In reality, the massive U.S. government keeps plodding along even when the president is overseas or tending to his campaign or other matters. The major issue Meadows mentioned – a coronavirus relief package – has already been negotiated mostly by Meadows and Treasury Secretary Steven Mnuchin. All that would be needed from the president is a sign-off and his signature.
Should Trump’s condition deteriorate, there are provisions in place for handing off temporary authority to the vice president. Trump is 74 and medically obese, placing him at higher risk than many Americans.
In the worst-case scenario, who comes after Mike Pence?
The line of succession is set by law – although there are ambiguities. Pence’s role as successor is enshrined in the Constitution. The vice president tested negative for the coronavirus, his office revealed Friday.
If Pence, 60, were to become incapacitated or be unable to serve, next in line for the presidency would be Speaker of the House Nancy Pelosi, 80, a Democrat, in terms set out by the Presidential Succession Act.
Next in line is the Senate president pro tempore, the senior-most majority party member, Sen. Charles Grassley of Iowa, 87.
Next in line would be Secretary of State Mike Pompeo, followed by other secretaries.
Should Pelosi be elevated, Republicans could mount a challenge to the succession law. Some scholars question its constitutionality, and there are questions about whether she would have to resign her seat to step in.
There are also provisions in the 25th Amendment for the cabinet to step in if the president is ‘unable to discharge the powers and duties of his office.’ This came up during the Russia probe, as it was revealed former acting attorney general Rod Rosenstein made a comment about it at a meeting while Trump raged about the probe. Rosenstein said he was joking.
Under a scenario where President Trump was living and sought to dispute the move, it would force a vote in Congress, with a two-thirds vote required in each house for his removal.
Can Republicans replace Donald Trump on the ballot?
The Republican National Committee has the ability to elevate the vice presidential candidate as the nominee or another Republican should Trump withdraw or die in office.
As it turns out, RNC chair Ronna McDaniel tested positive for the virus Wednesday, it was reported on Friday.
For any change, all 168 members of the RNC would have to meet to vote on Trump’s replacement.
All members of states and territories would vote and met as the did in Charlotte. During a flap this summer when Trump sought to move the convention, party officials concluded that the RNC had to meet and couldn’t do its vote virtually.
Replacing Trump on the ballot would be an extreme challenge – in part because people have already begun voting in many states.
Even if Trump were to die in office before election day, his name might still be on the ballot.
Even so, the Electoral College system could provide a solution. People who vote for Trump are in fact casting votes for a slate of electors.
The Electoral College meets in Congress on December 14.
‘Basically, there is a possibility that even if Donald Trump’s name is still on the ballot and he were to have withdrawn, that those electors could still end up voting for the Republican ticket, whatever that is, in December, John Fortier, the former executive director of the Continuity of Government Commission, told NPR.
People wait in line to cast their ballots in-person for the November 3rd elections at the early voting Chicago Board of Elections’ Loop Super Site in Chicago, Illinois, on October 1, 2020
Among the most challenging scenarios is what will happen if the vice president and the cabinet wanted the president to go, but he was still living and not wanting to relinquish his office.
‘Congress might have to decide whether to keep the president on, or to keep the vice president,’ said Fortier. ‘So it could go further down the line, but, you know, that would be the more extreme version.’
‘Could the president’s name be removed from the ballot? I think it would be very difficult,’ he said.
Can the election be postponed in any form?
This is an idea that Trump himself floated as the coronavirus hit – only to be immediately shot down by Republican congressional leaders.
The Nov. 3 Election Day is set by law, not by the Constitution, and it technically could be changed. But this would require legislative action by the Democratic House and the Republican Senate, with the president’s signature.
That power to set the election is derived from Article II of the Constitution.
It is possible states could still act to modify their election rules. Many have already done so amid the coronavirus, but those changes have already drawn legal challenges. The Republican Party and its allies have been fighting a variety of changes to expand mail voting, to do away with secondary envelopes, to loosen postmark rules and mail delivery times, to send mail ballots to all registered voters, and other steps.
Any last-ditch changes just weeks before Election Day would be certain to draw challenges from interested parties.
The Constitution sets the end of the presidential term at January 20.
States have the authority to set the procedures of their elections, and many opted to delay their primaries. But the national Election Day itself is fixed.
How we got here
The president confirmed on Friday that he and First Lady Melania tested positive for coronavirus after traveling with counselor Hope Hicks, who fell ill on Wednesday.
‘Tonight, @FLOTUS and I tested positive for COVID-19. We will begin our quarantine and recovery process immediately. We will get through this TOGETHER!’ he tweeted.
Trump is 74 years old, which puts him at higher risk of serious complications from virus.
With the presidential election less than 32 days away, the positive result means the government may have to consider contingency plans in line with the Constitution should Trump become too ill to go through with the race.
The 25th Amendment states that the vice president can replace the commander-in-chief temporarily in the event that Trump is incapacitated.
If the VP is also unable to assume control, the powers are then delegated to the Speaker of the House, in this case, Nancy Pelosi.
THURSDAY: Donald Trump gives a thumbs up as he walks from Marine One after arriving on the South Lawn of the White House in Washington, DC, October 1, 2020, following campaign events in New Jersey hours before revealing he has COVID-19
The president tweeted to confirm the news shortly before 1am EST Friday
President Donald Trump and first lady Melania Trump began ‘their quarantine process’ Thursday evening after Hope Hicks tested positive for COVID-19
Line of succession: Under the 25th Amendment, Vice President Mike Pence is next to assume executive control if the president cannot finish his term. The Speaker of the House, Nancy Pelosi, is second in line, if neither the president nor VP can take over
RNC RULES FOR FILLING VACANCIES FOR PRESIDENTIAL NOMINATIONS
The RNC’s rules state it is authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention.
The RNC may also reconvene the national convention for the purpose of filling any such vacancies.
In voting under this rule, the RNC members representing any state 9 of 43 shall be entitled to cast the same number of votes as said state was entitled to cast at the national convention.
In the event that the members of the Republican National Committee from any state shall not be in agreement in the casting of votes, the votes of such state shall be divided equally, including fractional votes, among the members of the RNC present or voting by proxy.
No candidate shall be chosen to fill any such vacancy except upon receiving a majority of the votes entitled to be cast in the election.
However, the looming election further complicates the matter, as the Democratic and Republican national committees could also pick a replacement to run on their party’s ticket if the nominee were to withdraw.
The committee could choose to nominate the vice presidential candidate, or another member of their party.
The selection process would depend on the parties’ respective bylaws.
Under this scenario, all 168 members of the RNC would have to meet to vote on Trump’s replacement.
The rules require all members – three from each state and three from six territories – to cast the same number of votes they were entitled to cast at the national convention.
If members of a given state fail to unanimously agree on the casting of votes, they would then divide it equally and cast a third of those votes.
That scenario, although hypothetical, would be the first of its kind since no presidential candidate of either party has ever died or withdrawn before an election.
A statement from the White House doctor said both the president and first lady are ‘well at this time’ but did not say if either have symptoms.
If Trump becomes seriously ill, there are constitutional procedures that would allow Vice President Pence to assume power temporarily.
The Constitution’s 25th Amendment spells out the procedures under which a president can declare themselves ‘unable to discharge the powers and duties’ of the presidency.
If he were to make that call, Trump would transmit a written note to the Senate president pro tempore, Republican Sen. Chuck Grassley of Iowa, and House Speaker Nancy Pelosi, D-Calif. Pence would serve as acting president until Trump transmitted ‘a written declaration to the contrary.’
This has happened occasionally, with Ronald Reagan briefly putting George H.W. Bush in charge during surgery in 1985, before George W. Bush temporarily transferred powers to Dick Cheney during colonoscopies in 2002 and 2007.
These were all brief, scheduled transfers of power and came nowhere near a re-election campaign.
There is also a second, never-used option: the vice president and a majority of the Cabinet can declare the president unable to discharge the powers and duties of his office, in which case Pence would become Acting President until Trump could provide a written declaration to the contrary.
There has also been speculation about a delayed election, but this is highly unlikely because voting is already underway.
While the Constitution does not specify an election date, moving the poll would require an act of Congress including support from the Democratic-controlled House of Representatives.
And regardless of the election date, Trump’s term ends on January 20.
First lady Melania tweeted: ‘As too many Americans have done this year, @potus & I are quarantining at home after testing positive for COVID-19. We are feeling good & I have postponed all upcoming engagements. Please be sure you are staying safe & we will all get through this together.’
Trump was last seen by reporters returning to the White House on Thursday evening and looked to be in good health.
WHAT DOES THE 25TH AMENDMENT SAY? CAN TRUMP’S CABINET REALLY TOPPLE HIM?
The 25th Amendment to the U.S. Constitution deals with presidential authority in the event of death or removal from office, and was ratified in 1967, in the wake of John F Kennedy’s assassination.
What does the 25th Amendment say?
It is in four sections, all dealing with the president leaving office during his or her elected term.
The first section states that the vice president takes over the Oval Office if the president dies or resigns – or is removed – something which the original Constitution did not clearly state.
Presidents of course can be removed by impeachment, a feature of the constitution from the start. They can also be removed through the 25th Amendment – of which more below.
Section II states that if the vice president dies, or resigns – or is fired – both the House and Senate have to confirm a new vice president. Until 1967, presidents could change vice presidents mid-term on their own if they got the vice president to agree to resign – not something that actually happened, but which was possible in principle.
Section III makes clear that a president can temporarily delegate his powers to the vice president, and later reclaim them when he – or she – is capable of serving. This is most often invoked if a president is under the influence of surgical anesthetic for a short period of time.
Section IV is the amendment’s most controversial part: it describes how the president can be removed from office if he is incapacitated and does not leave on his own.
The vice president and ‘a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide’ must write to both the president pro tempore of the Senate and the Speaker of the House, saying that ‘the President is unable to discharge the powers and duties of his office.’
The term principal officers of the executive departments would normally mean the cabinet secretaries.
So at least eight of the president’s 15 most senior Cabinet members together with the vice president must agree that a president should be removed before any plan can move forward.
Notifying the House Speaker and the Senate president pro tempore is the act that immediately elevates the vice president to an ‘acting president’ role.
The deposed president can contest the claim, giving the leaders of the bloodless coup four days to re-assert their claims to the House and Senate.
Congress then has two days to convene – unless it is already in session – and another 21 days to vote on whether the president is incapable of serving. A two-thirds majority in both houses is required to make that determination.
As soon as there is a vote with a two-thirds majority, the president loses his powers and is removed, and the vice president stops acting and is sworn in as president.
But if 21 days of debate and votes ends without a two-thirds majority, the president gets back his powers.
What could happen to trigger the 25th Amendment?
Vice President Mike Pence and eight of the 15 ‘principal’ Cabinet members would have to agree to notify Congress that President Donald Trump was incapable of running the country.
That group is made up of the Secretary of State, Treasury Secretary Steve Mnuchin, Secretary of Defense, Attorney General, Interior Secretary, Agriculture Secretary, Commerce Secretary, Labor Secretary, Health and Human Services Secretary, Transportation Secretary, Energy Secretary , Education Secretary, Veterans Affairs Secretary and Homeland Security Secretary.
Their formal notification would go to the House Speaker and, in the senate, to the ‘president pro tempore’, the Senate’s most senior member. As soon as the letter is sent, Pence would become ‘acting president.’
Alternatively, Congress could set up its own mechanism to decide if he is fit for office – maybe a commission, or a joint committee. Pence would still have to agree with its conclusion and then write formally to the Speaker and president pro tempore.
Or another possibility is that the pool of ‘principal officers’ is considered to be bigger than the 15 and a majority of that group call Trump incapable.
What if Trump does not agree?
If Trump claims he is capable of holding office, he would write to the House Speaker and the president pro tempore of the Senate within four days, setting up three weeks of intense debate in both houses of Congress.
Trump would be removed from office if both two-thirds majorities in both the House and Senate agreed with Pence and his cabal.
If either of both chambers fell short of that mark, Trump would retain his powers and likely embark on a wholesale housecleaning, firing Pence and replacing disloyal Cabinet members.
Are there any loopholes?
The 25th Amendment allows Congress to appoint its own panel to evaluate the president instead of relying on the Cabinet – the men and women who work most closely with Trump – to decide on a course of action.
It specifies that some ‘other body as Congress may by law provide’ could play that role, but Pence would still need to agree with any finding that the president is incapable of discharging his duties.
If Democrats were to take over both the House and Senate, they could create such a panel with simple majority votes.
That commission could hypothetically include anyone from presidential historians to psychiatrists, entrusted to assess the president’s fitness for office.
Another loophole is that it does not spell out that the Cabinet is needed to agree, but says that the ‘principal officers’ of the departments are needed. That term is undefined in the constitution. In some departments legislation appears to name not just the secretary but deputies and even undersecretaries as ‘principal officers’, so many more people could be called in to the assessment of Trump’s fitness.
Could Trump fire Pence if he rebelled?
Yes, in principle. If Trump smelled a whiff of trouble – if Pence and a cabal of Cabinet members, or Pence and a panel assembled by Congress seemed ready to judge him incapacitated – he could dismiss his vice president with the stroke of a pen to stop the process.
But installing a more loyal VP could be problematic since the 25th Amendment includes its own poison pill: Both houses of Congress must vote to approve a new vice president.
That means Trump would find himself up against the same Congress that would vote on his fitness for office, unless the process were to unfold in the weeks before a new Congress.
Theoretically, a Democratic-controlled Congress could make life dramatically more difficult for the president if it came into power in the midst of the constitutional crisis.
One scenario has appeared to stump presidential historians, however: Firing Pence before the process is underway, and then leaving the vice presidency vacant, would give Congress no practical way forward. That would present its own constitutional crisis.
Is there any precedent for this?
No. Only Section III, the voluntary surrender of presidential powers, has ever been used – and only very briefly.
In December 1978, President Jimmy Carter thought about invoking Section III when he was contemplating a surgical procedure to remove hemorrhoids.
Presidents Ronald Reagan and George W. Bush both voluntarily relinquished their powers while undergoing procedures under anesthetic.
Section IV has also never been invoked, although there have been claims that Ronald Reagan’s chief of staff Donald Regan told his successor, Howard Baker, in 1987 that he should be prepared to invoke it because Reagan was inattentive and inept.
The PBS documentary ‘American Experience’ recounts how Baker and his team watched Reagan closely for signs of incapacity during their first meeting and decided he was in perfect command of himself.
The White House had earlier distributed a schedule for Friday that showed he planned to go forward with a fundraiser at his Washington, D.C., hotel and a political rally in Sanford, Florida. That has since been canceled.
Fears that the president may have contracted the virus were raised after it was revealed Hicks had traveled on both Marine One, the presidential helicopter, and on Air Force One in the past week.
Along with the trip to Wednesday night’s rally, Hicks had been aboard Air Force One to fly to Tuesday night’s first presidential debate in Cleveland.
She was spotted by DailyMail.com getting off Air Force One in the city without her mask.
Hicks also traveled with the president to a rally in Pennsylvania last Saturday where she was seen maskless and clapping to the Village People’s YMCA.
Confirming the news of Hicks’ positive test earlier in the evening Trump had told Fox News: ‘Whether we quarantine or whether we have it, I don’t know.
‘I just went for a test and we’ll see what happens.’
He later tweeted to confirm he and Melania were in quarantine, writing: ‘Hope Hicks, who has been working so hard without even taking a small break, has just tested positive for Covid 19. Terrible! The First Lady and I are waiting for our test results. In the meantime, we will begin our quarantine process!’
Hicks began feeling mild symptoms during the plane ride home from a rally in Minnesota Wednesday evening, according to an administration official, who spoke to the Associated Press on condition of anonymity to disclose private information.
She was quarantined away from others on the plane and her diagnosis was confirmed Thursday, that person said.