If US President Donald Trump becomes seriously ill, incapacitated or unable to fill his duties during his term and his re-election campaign, the US Constitution spells out options for his replacement, temporary or otherwise. The scenarios if Trump must drop out of the election are less clear, and could be subject to political manoeuvring should there be divides in the Republican party.
Trump said Friday that he and First Lady Melania Trump have tested positive for COVID-19 and will be in quarantine while they recover.
The US Constitution’s 25th Amendment spells out how a president can temporarily hand over his presidential duties in writing to the vice president while he or she deals with their inability to perform their duties.
The 25th Amendment, which generally covers presidential succession due to death or resignation, was adopted following the 1963 assassination of President John F. Kennedy.
Section 3 of the amendment focuses on the president voluntarily handing over power temporarily.
The president, in writing, would inform the President pro tempore of the Senate and the speaker of the House of Representatives, and for the duration of incapacity, the vice president becomes acting president. The president resumes the power of the office by sending another letter, saying he or she is able to discharge the duties of the presidency.
On July 13, 1985, President Ronald Reagan set the precedent in a letter transferring his powers to Vice President George H.W. Bush, while undergoing surgery to remove a precancerous lesion from his colon. Reagan followed the provisions of Section 3 in sending the letters, but expressed misgivings “I do not believe that the drafters of this Amendment intended its applications to situations such as the instant one,” he wrote.
He transferred his powers to Bush for almost eight hours on that day.
In 2002 and 2007, President George W. Bush invoked Section 3 when he underwent colonoscopies. Bush transferred his powers to Vice President Cheney, who served as acting president for around two hours in each instance.
Section 4 of the 25th Amendment deals with what would happen if the president becomes incapacitated, or “is unable to discharge the powers and duties of his office” and must be involuntarily removed. The vice president must agree that the president is incapacitated along with a majority of “the principle officers of the executive departments” – the US cabinet, or “such other body as Congress may by law provide”.
Under that section, which has never been invoked, once the President pro tempore of the Senate and the speaker of the House of Representatives have been informed in a letter, the vice president would take over as acting president.
If the president submits a written declaration that no inability exists, he can resume duties unless the vice president and the cabinet or other body disagrees.
In that case, Congress meets to sort out the issue.
If two-thirds of the House and Senate agree the president is unable to discharge the duties of office, the vice president would continue as acting president until the next presidential inauguration.
Under the US Constitution the vice president is successor to the president “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office.”
That has happened many times before, most recently in 1974 when President Richard Nixon resigned in the wake of the Watergate scandal and Vice President Gerald Ford became president.
If for some reason the vice president is also unable to fill the duties, then the powers of the presidency pass to the speaker of the House of Representatives, currently Nancy Pelosi.
What has never happened is a president – or a party’s presidential nominee – dropping out or becoming unable to serve in the final months of a presidential campaign.
Canceling or postponing the presidential election is a power of the US Congress. Both the House and Senate would have to pass a federal law changing the election date, and that law would need to be signed by the president.
Should President Trump become unable to remain the Republican candidate, the party’s leadership, the Republican National Committee, could gather to choose a replacement ticket.
“If there were enough time, the party would seek to replace on the ballot in each state the name of its new candidate,” New York University law school professor Richard Pildes told the Washington Post. “There almost certainly would not be time to do this, particularly if the issue only arises two to three weeks from now. … President Trump will almost certainly remain on the ballot, no matter what happens.”
More than 2.8 million Americans have already cast their ballots in the presidential race either with mail-in ballots or early voting.
A US presidential election isn’t one national vote for president, it is 50 individual state elections, which choose electors to cast votes for a presidential candidate in the Electoral College.
Electors that are bound to the Trump-Pence ticket as a result of the election would almost certainly cast their votes in the Electoral College for the replacement Republican ticket if there were one.
“[E]ven if the electors are formally bound by state law to vote for the dead candidate, they will go ahead and vote for the candidate the RNC has identified to replace the President, if he cannot serve,” Pildes writes.
33 states plus the District of Columbia have faithless elector laws that bind electors to the candidate for whom they have pledged to vote. The other 17 states do not have these laws and do not penalize “faithless electors,” who can vote for someone else when the Electoral College meets, though this happens extremely infrequently.