What If?

President Trump’s COVID diagnosis had a huge ripple effect throughout the political world. Due to his age, weight, gender and a history of a mild heart condition, he was in the higher risk category for the virus.

He has since recovered and claims he feels 20 years younger. However, while he was at Walter Reed Hospital, a lot of hypothetical, albeit morbid, questions also arose about his potential inability to perform his duties. It also begged the question about the worst-case scenario – what if he actually succumbed to the disease before the election?

Carrying Out Duties. The 25th Amendment to the U.S. Constitution spells out what happens when the President can’t perform his duties. First, if a President were to pass away, resign or be removed from office, the Vice President would take over. Second, if something instead happened to the Vice President, the President would nominate a new VP who would take office upon confirmation by a majority vote of both Houses of Congress. If both the President and the Vice President were incapable of acting, then the Speaker of the House would assume the role.

These provisions were exercised with Gerald Ford. First, in 1973, following Vice President Spiro Agnew’s resignation, President Richard Nixon nominated Ford to succeed him. Then the following year, Nixon resigned after the Watergate scandal and was succeeded by Ford. So, for you trivia buffs out there, thanks to the 25th Amendment, Gerald Ford is the only person ever to serve as both vice president and president of the U.S. without being elected to either office.

Next, the Amendment allows the President to temporarily delegate his authority to the Vice President. During President Reagan’s term in office, before going in for minor surgery, he temporarily transferred power to vice president, George H.W. Bush. Similarly, when George W. Bush underwent several colonoscopies, he delegated authority to Dick Cheney.

Theoretically, there could be a situation where the President becomes ill and can’t act and isn’t able to transfer power. Or the President could have a fever or other cognitive ailment that clouds his judgment so that he thinks he is fit to act, when in all reality he may not be. In that case, the Vice President and a majority of the cabinet must call for the President’s removal and two-thirds of Congress must vote to not let him return until he is fit to do so.

Passing Away Before the Election. If the President were to pass away before the election, this raises all kinds of questions. At this late date, the ballots have all been printed. Many Americans have already voted.

Technically when we vote, we aren’t voting for the candidates themselves. Instead, our vote tells the electors in our electoral college who we want them to vote for. On December 14, the electors in each state meet and cast their ballots for president and vice president. If, for example, President Trump had died because of COVID just before the election, most likely the Republican Party would name a replacement for him and the electors would vote for the replacement.

While unlikely, the electors could instead, however, vote for the opposing party’s candidate if one party on the ticket died.

The 25th Amendment doesn’t address this situation directly. So, just like everything else during this pandemic, here’s yet another scenario where there is no certainty.

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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