What happens if the president is incapacitated? The 25th Amendment charts a course

President Donald Trump has tested positive for the coronavirus. Though the White House physician says he's "well at this time," the Constitution has provisions to try to ensure continuity should his condition change. Here's an explainer on the 25th Amendment.

Dwight Eisenhower's medical problems during his presidency led to an agreement with his vice president, Richard Nixon, to transfer executive power in the event of presidential incapacity.
Richard Nixon and Dwight Eisenhower in 1952. President Eisenhower's illnesses led to an agreement with Vice President Nixon to transfer executive power in the event of presidential incapacity.

When he left office in 1961 at the age of 70, Dwight Eisenhower was the oldest president in U.S. history. And he had battled health problems. In his first term Eisenhower suffered both a heart attack and a mild stroke, leaving a nation already jittery from Cold War tensions even more so.

He and his vice president, Richard Nixon, agreed to an arrangement in which Eisenhower would temporarily cede power should he again be incapacitated, but would himself determine when to reassume his duties.

It was an ad hoc agreement that left unaddressed a scenario in which the president is unable to declare himself fit for office.

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When the oldest-serving president was succeeded by John Kennedy, the youngest elected president, concern over the issue "arguably eased," according to Thomas Neale of the Congressional Research Service.

That is, until Kennedy's assassination again made the possibility of an extended presidential incapacity very real.

Article II, Section 1, Clause 6 of the Constitution says the vice president assumes the "powers and duties" of president in the event of the president's "inability," but doesn't say how to determine the president is unable to serve.

Hence the 25th Amendment to the Constitution, passed by Congress in 1965 and ratified in 1967 when Nevada became the 38th state to approve it. Sections 3 and 4 of the amendment fill that constitutional gap: how to ensure the nation has a chief executive when the president is incapacitated.

Section 3 addresses the simplest scenario: when a president determines he is incapacitated, and later determines he is able to return to the duties of the office. The president, in writing, informs the speaker of the House and the president pro tempore of the Senate of his incapacity, and informs them again in writing when ready to resume. The vice president during the interregnum serves as acting president.

According to Neale of the CRS, Section 3 has been invoked three times:

  • President Ronald Reagan arguably did so when he underwent cancer surgery in 1985 and put Vice President George H.W. Bush in temporary charge (though Reagan maintained the drafters of the amendment didn't intend it to be applied in such a circumstance).

  • President George W. Bush formally invoked the amendment twice, in 2002 and 2007, while undergoing routine colonoscopies.

Section 4 addresses a much more complex scenario: when a president is incapable of declaring his incapacity.

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 is unwilling to concede he is unable to perform his duties? Or informs Congress he is capable, but in the judgement of colleagues is not?

Again, Section 4: The vice president and a majority of Cabinet secretaries can 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, and the vice president serves as acting president. Short of that two-thirds vote, the president remains empowered.

There is one more route in Section 4 to declaring a president incapable of serving. The vice president may do so with "such other body as Congress may by law provide," essentially an independent review board. Physicians? Psychotherapists? Legal scholars? Religious leaders?

The 25th Amendment doesn't say, and Congress has never acted on the question.

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