A week ago, President Donald Trump was diagnosed with the coronavirus, spent several days at Walter Reed Medical Center for treatment and evaluation, and has since returned to the White House.
Throughout it all, Trump remained in control. He chose not to invoke the 25th Amendment, which details how presidential power can be transferred, either temporarily or more permanently, in the event a president is unable to do the job.
House Speaker Nancy Pelosi cited the amendment Friday when introducing legislation to establish a commission that would help determine whether future presidents are capable of maintaining power during an illness. She said it wasn’t about whether Trump was capable, but rather that his illness had shown the need to strengthen “guardrails in the Constitution to ensure stability and continuity of government in times of crisis.”
Some questions and answers about the 25th Amendment:
WHY WAS IT PASSED?
The push for an amendment detailing presidential succession plans in the event of a president’s disability or death followed the assassination of President John F. Kennedy in 1963. President Lyndon B. Johnson in his 1965 State of the Union promised to “propose laws to insure the necessary continuity of leadership should the President become disabled or die.” The amendment was passed by Congress that year and ultimately ratified in 1967.
HAS IT BEEN INVOKED TO TRANSFER POWER BEFORE?
Yes, presidents have temporarily relinquished power but not all invoked the 25th Amendment. Previous transfers of power have generally been brief and happened when the president was undergoing a medical procedure.
In 2002, President George W. Bush became the first to use the amendment’s Section 3 to temporarily transfer power to Vice President Dick Cheney while Bush was anesthetized for a colonoscopy. Bush temporarily transferred power in 2007 to undergo another colonoscopy.
WHAT ABOUT RONALD REAGAN?
The 25th Amendment was never invoked after President Ronald Reagan was shot in 1981. Reagan did temporarily transfer power to Vice President George H. W. Bush while undergoing surgery to remove a polyp from his colon in 1985, but he said at the time he wasn’t formally invoking the 25th Amendment. While he said he was “mindful” of it, he didn’t believe “that the drafters of this Amendment intended its application to situations such as the instant one.” Bush was acting president for eight hours according to a book on the amendment by John D. Feerick.
HOW DOES IT WORK?
To temporarily transfer power to the vice president, a president sends a letter to the speaker of the House of Representatives and president pro tempore of the Senate stating he is “unable to discharge the powers and duties of his office.” The vice president then becomes acting president. When the president is ready to resume authority, the president sends another letter. That’s spelled out in the amendment’s Section 3.
The next section of the amendment, Section 4, lays out what happens if the president becomes unable to discharge his duties but doesn’t transfer power. In that case, the vice president and majority of the Cabinet can declare the president unfit. They’d then send a letter to the speaker and president pro tempore saying so. The vice president then becomes acting president.
If the president ultimately becomes ready to resume his duties, the president can send a letter saying so. But if the vice president and majority of the Cabinet disagree, they can send their own letter to Congress within four days. Congress would then have to vote. The president resumes his duties unless both houses of Congress by a two-thirds vote say he’s not ready. The section has never been invoked.
WHAT IS BEING PROPOSED NOW?
Section 4 of the amendment gives Congress the power to establish a “body” that can, with the support of the vice president, declare that the president is unable to do his job. If they agree the president is unfit, the vice president would take over. But Congress has never set up the body.
On Friday, Pelosi and Rep. Jamie Raskin, D-Md., a former constitutional law professor, proposed the creation of a commission to fill that role. The legislation would set up a 16-member bipartisan commission chosen by House and Senate leaders. It would include four physicians, four psychiatrists and eight retired statespersons, such as former presidents, vice presidents and secretaries of state. Those members would then select a 17th member to act as a chair.
After the commission is in place, Congress would be able to pass a resolution requiring the members to examine the president, determine whether the president is incapacitated and report back. Raskin introduced a similar bill in 2017.