OP-ED: What happens if Trump is ‘unable’ to govern

Cass R. Sunstein
Bloomberg Opinion (TNS)
In this file photo, US President Donald Trump and US First Lady Melania Trump leave after the first presidential debate at Case Western Reserve University and Cleveland Clinic in Cleveland, OH, on September 29, 2020. President Trumps's age, sex and weight status increases his risk of developing a severe case of COVID-19. (Saul Loeb/AFP/Getty Images/TNS)

Now that President Donald Trump has tested positive for COVID-19, the Department of Justice is almost certainly focusing on the 25th Amendment, which provides for the transfer of presidential authority to the vice president.

No one who works for a sitting president wants to think about that amendment. But in any administration, worst-case scenarios get attention, and if the president is sick, the lawyers and the vice president have to be clear on what the 25th Amendment says and requires.

The good news is that for most imaginable health outcomes associated with the virus, it is entirely clear. The less good news is that for some imaginable health outcomes, especially those associated with COVID-19, the 25th Amendment is ambiguous.

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It offers two different routes by which the transfer of power can occur. Section 3 says this:

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4 says this:

Whenever 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, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Under section 3, the president voluntarily transfers power to the vice president. Under section 4, the decision is made by the president’s own team — by majority vote.

Section 4 also allows a role for Congress. If power has been transferred to the vice president, the president can produce a written declaration that he is well and can become president again — unless the vice president and a majority disagree. In the (unlikely) event of disagreement, Congress resolves the issue, with the president prevailing unless both houses vote, by a two-thirds margin, that he cannot discharge the powers and duties of his office.

In 1981, I was a young lawyer in the Office of Legal Counsel of the Department of Justice, and I saw the operation of these provisions in real time. My boss, Theodore Olson, had asked me, very early in Ronald Reagan’s presidency, to become the resident expert on the 25th Amendment.

I thought it was a hypothetical exercise (and pretty pointless). But when John Hinckley shot Reagan, Olson quietly called me aside and told me that the president was in worse shape than the press was reporting. He told me to write two declarations, transferring power to Vice President George H.W. Bush. Both were sent over to the White House.

Fortunately, Reagan recovered well, and no one needed to invoke the 25th Amendment.

For that reason, we didn’t need to focus on a crucial unresolved question: the meaning of “unable,” which is the amendment’s most important word.

As everyone knows, people who test positive for COVID-19 have a continuum of symptoms. These can include essentially nothing; mild flu-like systems; serious but not life-threatening unpleasantness for a week or two; heart problems; severe respiratory problems requiring hospitalization; and worse.

That means that for 25th Amendment purposes, the Department of Justice’s analysis is mostly straightforward. The purpose of the amendment is to handle just one problem: incapacitation.

If the president has mild flu-like symptoms, or anything in that vicinity, the 25th Amendment should not and cannot be invoked. If the president is essentially flat on his back and unable to do his job (realistically speaking), the 25th Amendment must be invoked. That is not discretionary. If he is capable of doing so, he himself must sign the declaration required by section 3; if he cannot, the vice president and the cabinet must proceed under section 4.

Unfortunately, we can also imagine hard cases. The course of COVID-19 is unpredictable, and for some of its symptoms, people can reasonably disagree about whether it renders its victims “unable” to do their jobs. Symptoms that involve extreme fatigue, headaches and cognition could present borderline cases. It’s highly unlikely, but we cannot rule out a situation in which the president refuses to sign a declaration under section 3 but in which the vice president and the cabinet are compelled to proceed under section 4.

For anyone who gets COVID-19, including the president, there is a good chance that the disease will not prove incapacitating. If so, we will have no need to worry about the 25th Amendment. But it’s essential to understand what it makes clear, and what it leaves open.

— Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”