Now is the time to address presidential and vice-presidential incapacity
By Roy E. Brownell II, Opinion Contributor — 10/02/20 02:30 PM EDT
The news that President Trump has contracted COVID-19 has refocused public attention on executive branch incapacity. The 25th Amendment provides answers for when the president alone is unable to fulfill his duties. But, given the ease with which the virus spreads, what would happen if both the president and Vice President Mike Pence became incapacitated?
Regrettably, there are no constitutional or statutory provisions that expressly articulate what is to be done in this situation. Accordingly, the executive branch and Congress need to take joint action to address this troubling scenario.
Articles I and II of the Constitution delegate authority to Congress to legislate in this area but no statutory roadmap has ever been adopted. Nonetheless, information recently made public indicates that White House lawyers in the Reagan, George H.W. Bush and Clinton administrations established guidelines to try to tackle the problem. These earlier executive branch contingency plans explain that:
“no guidance can be given with any legal certainty. The goal . . . would be to have the Speaker [as the statutory successor] act as President. One way in which this goal might be obtained would be to implement procedures which parallel the 25th Amendment. The determination of Presidential and Vice Presidential inability should be made by the Speaker of the House and the Cabinet. They should then transmit their written declaration of inability to the President pro tempore of the Senate and the Majority Leader, and perhaps Minority Leader, of the House. That having been done, the Speaker would become Acting President . . . .â€
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https://thehill.com/opinion/white-house/519352-now-is-the-time-to-address-presidential-and-vice-presidential-incapacity
