What Happens if Trump Becomes too Incapacitated to Serve, Drops Out of the Election, or Both?
Last night, President Trump announced that he and his wife Melania have both tested positive for the Coronavirus. This has led to speculation about what might happen if Trump becomes too incapacitated to continue serving as president, has to drop out of the election, or both. The former issue is governed by the Twenty-Fifth Amendment. Legal scholar Brian Kalt, who literally wrote the book on this subject, addressed the relevant issues in a recent Washington Post op ed:
The key provision is the 25th Amendment…. Enacted in the 1960s after John F. Kennedy was assassinated and at the height of the Cold War, the 25th Amendment finally provided a clear process, with the aim of ensuring that there is always a hand at the helm.
Section 3 of the amendment allows the president to transfer power voluntarily to the vice president. To do this, Trump would send formal notice to the speaker of the House and president pro tempore of the Senate, declaring that he is “unable to discharge the powers and duties of his office.” Upon transmitting this declaration, Vice President Pence would become acting president — those powers and duties would all go to him. Whenever Trump felt able again, he would send a new declaration and immediately take back control…..
Recognizing that the president might be incapacitated but unwilling to admit it — or, more problematically, unable to admit it because he is unconscious — the 25th Amendment also includes Section 4, which transfers power without the president’s consent. Instead of Trump transmitting his declaration declaring he is “unable,” Pence and a majority of the core members of the Cabinet do so…. As in Section 3, power immediately transfers to the vice president. If Pence and the Cabinet members did invoke Section 4, then whenever Trump felt able enough to resume his duties, he would send a declaration to that effect, kicking off a four-day waiting period during which Pence would stay in control. If Pence and a majority of the Cabinet did not disagree with Trump’s declaration within those four days, Trump would retake his powers. If Pence and the Cabinet did disagree, the question would get kicked to Congress, with Pence in charge in