By Rahem Hamid – Senior Political Correspondent
The diagnosis of President Trump with COVID-19 on Friday and his subsequent admission into Walter Reed hospital brought to light one of our most recent constitutional amendments and a relatively unknown US law. The 25th amendment, proposed after the assassination of President Kennedy and ratified in 1967, lays out in clear terms what is to happen in a variety of scenarios if the President is ever incapacitated. The 1947 Presidential Succession Act was the third of its kind in US history that spells out in clear terms who is 3rd, 4th, 5th, and all the way to the 20th in line to the presidency. But both have gaping holes that leave us susceptible to national and international chaos in unprecedented times.
The 25th Amendment, as Garrett Graff of Politico pointed out, is thorough when discussing succession to the President. Should the President die or resign, the Vice President takes office. If the office of the VP is vacant, the President will nominate someone who has to be confirmed by both houses of Congress. The President can also transfer power to the Vice President for a short period of time if he or she can’t carry out his or her duties. Even the Vice President and Cabinet can wrest power away from the President should they deem him or her unfit to hold the office, and there are several steps covering all scenarios in that unlikely event. This is all spelled out in the Constitution.
But this brings us to our next problem – what happens if the Vice President can’t carry out their duties? The Constitution only says that the President may appoint someone if the Vice Presidency is vacant – that’s only happened twice, once when President Nixon’s VP Spiro Agnew resigned and Gerald Ford was confirmed in 1974 and then again when, upon assuming the Presidency later that year, Gerald Ford left the VP office vacant and had to appoint one. But if the VP is simply incapacitated, who fills in? Worse yet, as Graff points out, what if both the President and Vice President are?
The 1947 Presidential Succession Act says it’s the Speaker of the House, followed by the President Pro Tempore of the Senate (tradition dictates that that’s the longest serving member of the majority party, an honor currently bestowed upon Senator Chuck Grassley of Iowa). This Act is the third succession act we’ve had since the founding of this country – the Constitution gives the power of drawing up the line of succession to Congress. In 1792, they said it was simply the President pro tempore followed by the Speaker of the House. In 1886, both offices were stripped from the line and replaced with Cabinet secretaries, in the order their departments were founded. In 1947, with the now present threat of nuclear war, the act was amended – the Speaker of the House and President Pro Tempore were reinstalled, this time above the Cabinet secretaries and in reverse order from 1792.
This is where the issue comes in – it’s unclear if that’s constitutional, which is a massive problem. The Constitution itself says that only an “officer” of the US can serve as President, and members of Congress (as both the Speaker and the President Pro Tempore are) are not officers of the United States. While we’ve had VPs act as President even when the elected President was still alive (once when President Reagan was shot in 1981 and twice when President George W. Bush underwent surgery), we have never had a Speaker of the House or President Pro Tempore fill in – ever. Not when the President or VP were both alive but incapacitated, and not when both offices were left vacant. This means we would be in uncharted territory – and if, on top of the chaos we’d be in, we’re disagreeing over whether or not someone can even BE president, much less if they are, we’re headed for dark times.
Graff makes the case that it’s not hard to imagine Secretary Pompeo (who is fourth in line, and the first member of the executive branch after VP Pence) working with Attorney General Barr to undermine Nancy Pelosi’s ascent to the Presidency should she ever need to. This is not beyond the realm of possibility – in our partisan times, it’s not hard to believe that members of an opposing party will challenge a Speaker’s assuming of presidential duties if the Speaker is not from the same party. We’re now facing a series of questions that only plunge us further into chaos – if current Cabinet members are taking orders from Pelosi but don’t consider her legitimate, do they have to listen? What if they don’t? Graff points out the Supreme Court might have to get involved, which only cements the importance of an independent judiciary. What happens if the Supreme Court rules that members of Congress can’t be in the line of succession? We won’t have a new law, since we won’t have an executive to sign it into law – would the Supreme Court have to appoint a new President, something well beyond their constitutional purview? These are all questions that are clearly worst-case hypotheticals – but a prepared nation has answers to seemingly outlandish what-ifs that could become what-nows.
The president, it is worth reminding ourselves, is the commander in chief. A clear chain of command is essential for any nation, especially one that is as much of an economic and military superpower as the United States. Knowing who is at the head of our executive branch is critical not just for national security, but to prevent domestic uncertainty and the panic it may bring about. The US’s sheer importance on the world stage means that a catastrophic event will shatter both US and international markets, make it unclear to our allies who is leading us, and leave us dangerously susceptible to attacks from our adversaries. Both the 25th Amendment and the 1947 Presidential Succession Act are bits of the US Constitution and legal code that are or will only be invoked in unfortunate to downright terrifying times – they aren’t things that are front of mind for many people, and they’re certainly not the topic of cheery or reassuring conversations. But they’re essential nonetheless. For the sake of the country and the world, the 25th Amendment needs to be added to and the 1947 Presidential Succession Act needs to be changed to a point where no one can question its constitutionality.