But if the vice president is also incapacitated, there is no way to use Sections 3 or 4. When Congress drafted the Twenty-Fifth Amendment in 1965, members acknowledged this gap but consciously decided not to fill it. The amendment was already extraordinarily wordy, and the risk of double incapacity seemed minimal. Fifty-five years later, though, that risk is easier to imagine.
So what would happen if Trump and Pence were so sick that neither could function? Article II of the Constitution lets Congress provide for the Case of 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. In other words, Congress can pass line-of-succession statutes. And it has, most recently in 1947. That law still stands, and it puts the speaker of the House next in line, followed by the president pro tempore of the Senate, followed by members of the Cabinet.
Ronald J. Krotoszynski, Jr.: States are using the pandemic to roll back Americans rights
However, Article II provides no procedures for determining inability. Imagine that Speaker Nancy Pelosi, believing that Trump and Pence are too ill to function, cites Article II and declares herself acting president. If Trump or Pence replied that no inability existed, control of the White House would be thrown into doubt. Courts could settle the matter in due time, but just a few hours of uncertainty could be perilous.
But even if Trump and Pence were undeniably incapacitated, the country could still face a meltdown. As a matter of both policy and law, it is highly problematic that the speaker and president pro tempore are in the line of succession.
The biggest policy problem is that these congressional leaders are often members of the party opposed to the president. A line of succession statute would ideally provide continuity, because a sudden transfer of presidential power from one party to the other would be jarring. The new acting president would struggle for legitimacy (imagine power suddenly shifting from Trump to Pelosior, if that doesnt trouble you, from President Barack Obama to Speaker Paul Ryan). Avoiding such a transfer would produce perverse incentives for White House staff and other members of the presidents political party to cover up or sugarcoat the presidents and vice presidents medical conditions.
During Watergate, after Vice President Spiro Agnew resigned and before Gerald Ford was confirmed to replace him, no one held the office for eight weeks. Democratic Speaker Carl Albert promised that if something happened to President Richard Nixon and Albert became acting president, he would appoint a Republican vice president, then resign. From the standpoint of todays poisonous politics, such nonpartisan sacrifice seems inconceivable.
Read the rest here:
The Very Real Problem of Both Trump and Pence Getting COVID-19 at the Same Time - The Atlantic
- Fifth Amendment - The Text, Origins, and Meaning of the ... - April 26th, 2014 [April 26th, 2014]
- 5th Amendment - Revolutionary War and Beyond - April 26th, 2014 [April 26th, 2014]
- Fifth Amendment to the United States Constitution ... - April 26th, 2014 [April 26th, 2014]
- Justices suggest public employees' testimony is protected - April 29th, 2014 [April 29th, 2014]
- HST 330 fifth amendment presentation - Video - May 1st, 2014 [May 1st, 2014]
- Police not sure if Sioux City murder suspect invoked 5th Amendment rights - May 3rd, 2014 [May 3rd, 2014]
- Christie Ally Samson Refuses to Give Documents to Lawmakers - May 4th, 2014 [May 4th, 2014]
- House votes to hold ex-IRS official in contempt - May 8th, 2014 [May 8th, 2014]
- House votes to hold ex-IRS official Lois Lerner in contempt of Congress - May 8th, 2014 [May 8th, 2014]
- House holds Lois Lerner in contempt - May 8th, 2014 [May 8th, 2014]
- House votes to hold former IRS official in contempt - May 8th, 2014 [May 8th, 2014]
- Articles about Fifth Amendment - Los Angeles Times - May 9th, 2014 [May 9th, 2014]
- Former PA Chairman Samson Pleads Fifth - Video - May 9th, 2014 [May 9th, 2014]
- GOP-led House votes to hold former IRS official in contempt - May 12th, 2014 [May 12th, 2014]
- No plans to arrest Lois Lerner, John Boehner says - May 13th, 2014 [May 13th, 2014]
- Im not going to testify: Witness pleads Fifth Amendment during Bangor triple murder trial - May 13th, 2014 [May 13th, 2014]
- Attorney: Defense told Corso will take Fifth - May 16th, 2014 [May 16th, 2014]
- Spokane County workers use Fifth Amendment in back-dating case - Thu, 22 May 2014 PST - May 22nd, 2014 [May 22nd, 2014]
- Shawn Vestal: County permit clerical mishap raises eyebrows - Fri, 23 May 2014 PST - May 23rd, 2014 [May 23rd, 2014]
- Sexual abuse measure could lead to wrongful convictions, attorneys say - August 31st, 2014 [August 31st, 2014]
- 5th Amendment - Laws.com - August 31st, 2014 [August 31st, 2014]
- Wildstein takes the 5th - Video - August 31st, 2014 [August 31st, 2014]
- Fifth Amendment (United States Constitution ... - September 2nd, 2014 [September 2nd, 2014]
- New bill a powerful tool to imprison sex offenders - September 3rd, 2014 [September 3rd, 2014]
- Cristin Milioti in The Good Wife - Julianna Margulies - Video - September 4th, 2014 [September 4th, 2014]
- Kansas Supreme Court: Grand jury violated man's Fifth Amendment rights - September 6th, 2014 [September 6th, 2014]
- Attorney Gwendolyn Solomon Petitions United States Supreme Court to Review Tenth Circuits Decision in Case of the IRP6 - September 9th, 2014 [September 9th, 2014]
- Texas man's conviction overturned because of Fifth Amendment violation - September 10th, 2014 [September 10th, 2014]
- Cop Says 'You Must Be Doing Something Wrong if You Invoke Your Rights' (Video) - September 12th, 2014 [September 12th, 2014]
- Public be damned Litchfield latest example - September 14th, 2014 [September 14th, 2014]
- Volokh Conspiracy: What the posse comitatus case might mean for the future of the exclusionary rule - September 15th, 2014 [September 15th, 2014]
- Fifth Amendment - Video - September 15th, 2014 [September 15th, 2014]
- Top 5 Constitution-Related Searches at FindLaw.com - September 19th, 2014 [September 19th, 2014]
- The Fifth Amendment Eminent Domain - Video - September 19th, 2014 [September 19th, 2014]
- Apple And Google Will Force A Legal Battle Over The Privacy Of Your Passcode - September 20th, 2014 [September 20th, 2014]
- Civics- The Fifth Amendment (Sarah Hutchinson) - Video - September 20th, 2014 [September 20th, 2014]
- Google and Apple Wont Unlock Your Phone, But a Court Can Make You Do It - September 22nd, 2014 [September 22nd, 2014]
- GOP fumes over Lerner remarks - September 23rd, 2014 [September 23rd, 2014]
- Assistant to DeKalb CEO Ellis invokes 5th Amendment 30 times - September 23rd, 2014 [September 23rd, 2014]
- GOP fumes as Lois Lerner talks to press but snubs Congress - September 24th, 2014 [September 24th, 2014]
- Cry us a river, Lois Lerner - September 24th, 2014 [September 24th, 2014]
- Can You Go to Jail for Refusing to Testify? - September 25th, 2014 [September 25th, 2014]
- Fifth Amendment Projectb - Video - September 25th, 2014 [September 25th, 2014]
- The Commander Cody Band - Take The Fifth Amendment - 8/5/1977 - Convention Hall (Official) - Video - September 27th, 2014 [September 27th, 2014]
- Joey Gallo Takes The Fifth Amendment - Video - September 29th, 2014 [September 29th, 2014]
- Batavia High School teacher John Dryden retires from school district - October 3rd, 2014 [October 3rd, 2014]
- Batavia High School teacher John Dryden retires - October 4th, 2014 [October 4th, 2014]
- The Fifth Amendment Please Don't Leave Me Now - Video - October 6th, 2014 [October 6th, 2014]
- Man Denied Fifth Amendment While In Court Wearing Anti-Police Shirt, Still Won His Case (Video) - October 7th, 2014 [October 7th, 2014]
- Batavia teacher previously involved in Fifth Amendment dispute retires - October 7th, 2014 [October 7th, 2014]
- INFORMUCATE: THE FIFTH AMENDMENT - Video - October 8th, 2014 [October 8th, 2014]
- Fairholme Funds Appeals Fannie Mae and Freddie Mac Verdict - October 10th, 2014 [October 10th, 2014]
- Fresno Police Officer violated fifth amendment at a dui checkpoint. - Video - October 10th, 2014 [October 10th, 2014]
- Code cases: Police want phone access, but some pass - October 12th, 2014 [October 12th, 2014]
- Fresno Police Officer violated fifth amendment at a dui checkpoint. part 2 - Video - October 12th, 2014 [October 12th, 2014]
- Property Rights | Century Law Group - Video - October 20th, 2014 [October 20th, 2014]
- Agents questioned, Askar takes the Fifth in Trombetta hearing - October 21st, 2014 [October 21st, 2014]
- Scott and Crist have heated and personal final debate before November election - October 22nd, 2014 [October 22nd, 2014]
- Detective dodges questions about allegations made during rape investigation - October 25th, 2014 [October 25th, 2014]
- Disciplinary hearing for SB officer moved to later date - Video - October 27th, 2014 [October 27th, 2014]
- Judge Rules Suspect Can Be Required To Unlock Phone With Fingerprint - October 31st, 2014 [October 31st, 2014]
- Virginia judge: Police can demand a suspect unlock a phone with a fingerprint - October 31st, 2014 [October 31st, 2014]
- Court rules: Touch ID is not protected by the Fifth Amendment but Passcodes are - October 31st, 2014 [October 31st, 2014]
- Virginia Court: LEOs Can Force You To Provide Fingerprint To Unlock Your Phone - November 1st, 2014 [November 1st, 2014]
- Civil Rights and Civil Liberties - Fifth Amendment - Shh! The Right to Remain Silent - Video - November 1st, 2014 [November 1st, 2014]
- Your Fingerprints Belong To Us: Iphone Users Forfeit 5th Amendment - Video - November 2nd, 2014 [November 2nd, 2014]
- All Your Fingerprints Are Belong To Us: iPhone Users Forfeit Fifth Amendment - Video - November 2nd, 2014 [November 2nd, 2014]
- Log into Tax-News+ - November 4th, 2014 [November 4th, 2014]
- Editorial: Applying the Fifth Amendment in the era of smartphones - November 4th, 2014 [November 4th, 2014]
- Volokh Conspiracy: Virginia state trial court ruling on the Fifth Amendment and smart phones - November 4th, 2014 [November 4th, 2014]
- Fingerprints: iPhone Users Forfeit Fifth Amendment. - Video - November 4th, 2014 [November 4th, 2014]
- New ruling may affect police access to smartphones - Video - November 6th, 2014 [November 6th, 2014]
- Why the Constitution Can Protect Passwords But Not Fingerprint Scans - November 7th, 2014 [November 7th, 2014]
- Virginia state trial court ruling on the Fifth Amendment ... - November 7th, 2014 [November 7th, 2014]
- Is taking the fifth amendment a bad idea? - Video - November 7th, 2014 [November 7th, 2014]
- IT Security TV Show 4 November 2014 - iPhone Users Forfeit Fifth Amendment - Video - November 7th, 2014 [November 7th, 2014]
- the fifth amendment happy parody project song for connections - Video - November 8th, 2014 [November 8th, 2014]
- 13-year-olds murder conviction overturned - November 11th, 2014 [November 11th, 2014]
- Your Fifth Amendment Rights DO NOT Cover Biometrics - Video - November 11th, 2014 [November 11th, 2014]
- Philadelphia charter school officials pleaded Fifth 77 times - November 12th, 2014 [November 12th, 2014]