Here is what happens if President Trump becomes too ill to serve

If President Donald Trump becomes too ill to serve as he battles covid-19 — either in his own opinion or that of Vice President Mike Pence and the cabinet — the Constitution would come into play.

Brian Kalt, a law professor at Michigan State University, is the author of a book on the 25th Amendment, which defines rules of presidential succession and inability. He said that two potential sections could apply if Trump becomes unable to perform or is incapacitated.

Under Section 3, the president declares himself unable to discharge his duties, and passes that power to the vice president voluntarily.

Section 4, however, allows the vice president and a majority of the cabinet to declare the president unfit and invoke the 25th Amendment to remove him from power.

If, in that scenario, the president fights their determination, Kalt said, the vice president and cabinet have four days to refer the issue to Congress. Then, within 21 days, a two-thirds majority vote is required to find the president unfit and have him removed.

“Two-thirds is pretty tough,” Kalt said. “They’re not going to do that unless they’re pretty sure they’re going to win.”

During that four-day referral period, the vice president is in power.

If Congress votes against invoking the 25th Amendment, the president is reinstated.

“The process really stacks the deck in the president’s favor,” said Kalt, whose book “Unable: The Law, Politics and Limits of Section 4 of the 25th Amendment” was published last year.

If the president is removed, it is up to him to initiate the process to return to power once he is well, he said.

“The thing about the 25th Amendment is that it requires complete incapacitation,” said Duquesne University School of Law associate professor Jalila Jefferson-Bullock, who teaches constitutional law. “So, if the president were to become hospitalized but could still conduct business, the 25th Amendment would not necessarily trigger because there are lots of things that maybe he couldn’t do, but that he could delegate to his aides.

“But if (Trump) ends up on a ventilator and couldn’t communicate, for example, that’s a different story. In that case, the 25th Amendment would need to be invoked. Vice President Pence would need to be sworn in as acting president.”

Since the 25th Amendment was ratified in 1967, Section 4 has never been invoked.

Section 3, however, has been used three times, Kalt said.

In each instance, it was because a president was undergoing general anesthesia for a medical procedure — once for President Ronald Reagan, who was having surgery on his colon, and twice for President George W. Bush, who was undergoing colonoscopies.

Kalt said the 25th Amendment should have been invoked when Reagan was shot on March 30, 1981, but it was not.

“They didn’t want to show weakness in front of the Russians,” Kalt said. “He was old, and they didn’t want him to seem anything less than vigorous.”

The impetus for the 25th Amendment was the assassination of President John F. Kennedy in 1963, but the idea of considering such an amendment began during the Eisenhower administration.

When he won the general election in 1952 at the age of 62, Dwight Eisenhower was the oldest president-elect since James Buchanan in 1856. During his presidency, Eisenhower suffered a heart attack that kept him hospitalized and later a mild stroke.

Eisenhower’s health problems led him to form an agreement with Vice President Richard Nixon that he would temporarily give power to Nixon if he were ever to become incapacitated again.

“That was just kind of an informal agreement between the two of them,” said Jefferson-Bullock.

Although it was felt by some at the time that a more formal procedure should be put in place, it didn’t happen until “the chaos that emerged after President Kennedy’s assassination,” said Jefferson-Bullock. “But the concern was incapacitation. My view is that they were harkening back to the days of Eisenhower and his illnesses. What was not in the Constitution yet was a process for how to determine when the president is unable to serve.”

In the United States, the line of succession if the president cannot perform his duties first falls to the vice president. After that, it goes to the speaker of the House, the Senate president pro tem, and then to the Cabinet, starting with the secretary of state.

Prior to the passage of the 25th Amendment, there was still a succession of power — first to the vice president, but Kalt said, there was no mechanism in place to accomplish that.

For example, when President Woodrow Wilson had a stroke in 1919, Wilson’s wife was left running things. And when James Garfield was assassinated in 1881, the president’s staff was in charge.

Under the 25th Amendment, Kalt said, there is nothing that spells out what happens if both the president and vice president are unable to lead at the same time.

Kalt wrote a piece for the Atlantic in May, suggesting that Congress must pass a statute that addresses that lack of process — particularly given the covid-19 pandemic.

Some scholars, he wrote, have suggested that it is unconstitutional to have legislators in the line of succession.

That can be made all the more complicated in a scenario like the United States currently has, where the president is of a different party than the House Speaker.

“It is all too easy to imagine, in the throes of a crisis, that members of a president’s party would latch on to this constitutional interpretation,” Kalt wrote. “They would argue that the secretary of state was the rightful acting president.”

He wrote that such a scenario could plunge the country into a “constitutional catastrophe.”

Were the president, who has been taken to Walter Reed Hospital, to die in the weeks leading up to the election, Kalt said, the Republican National Committee would be required to nominate a replacement candidate. They could choose Pence, but not necessarily. If they chose the vice president, then, he continued, the committee would nominate someone to replace Pence on the ticket.

With such a short time prior to the election, though, Kalt said, they would not reprint the ballot.

That scenario has come into play twice. In the 1872 presidential election, Horace Greeley lost to Ulysses S. Grant. Greeley died in late November, before the Electoral College met, and his Electoral College votes were divided among other candidates. In the 1912 election, President William Taft’s running mate, Vice President James Sherman, died a week before the election. Taft lost.