Two members of the White House staff tested positive for coronavirus, including an aide to the Vice President, and the West Wing is now donning facial masks. Some White House officials, including Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases (NIAID), have gone into quarantine after potential exposure. Which leaves the question, if both the President and Vice President of the United States become incapacitated with Coronavirus, who takes over?
When UK Prime Minister Boris Johnson came down with COVID, he, for a short period of time, was in the intensive care unit, and with no deputy leader in place to assume the role, Foreign Secretary Dominic Raab took over responsibilities.
In the US, if the President in unable to serve as Commander in Chief, per Article II, Section 1, Clause 6 of the Constitution, the Vice President assumes the role.
Article II, Section 1, Clause 6:
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, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The 25th Amendment, Section 3, however, takes this deeper:
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.
and specifies how the President can return to duty once well in Section 4:
….when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session.
Deciding who succeeds the Vice President, however, has not been so clear cut throughout the centuries.
In 1792, the Presidential Succession Act was passed, putting the president pro tempore, followed by the House Speaker in charge if the office of Vice President was vacant.
Then in 1886, Congress substituted their members from the line of succession with the Secretary of State and Cabinet members.
Then in 1947, Congress revised the order of succession by adding the Speaker of the House and Senate president pro tempore ahead of the Cabinet members.
So the succession list currently looks like this:
- Vice President Mike Pence
- Speaker of the House Nancy Pelosi
- Senate president pro tempore Chuck Grassley
- Secretary of State Mike Pompeo
- Secretary of the Treasury Steve Mnuchin
- Secretary of Defense Mark Esper
- Attorney General William Barr
and continues with the various Cabinet members/Executive department heads.
Debate, however will ensue over the definition of “Inability” and if the President or Vice President can still hold office while fighting COVID.
Additionally, legal experts have wrestled with the term “Officer” and if that excludes Congressional leaders from holding another office per the verbiage from Article I:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Would this mean that Nancy Pelosi, as Speaker of the House, would have to resign her position to be able to take over as Commander in Chief?
So in conclusion, if President Trump and Vice President Pence become exposed and ill with COVID-19 and there are no clear cut parameters as to what constitutes their “inability” (assuming they aren’t intubated) and if a member of Congress cannot officially take an executive branch role, the fight for control of the White House could be messier than any election we’ve seen thus far…..
Daliah Wachs, MD, FAAFP is a nationally syndicated radio personality on GCN Network, KDWN, and iHeart Radio.