Now is the time to address presidential and vice-presidential incapacity

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 . . . .”

These past plans were sensible. They conformed with the norms of the 25th Amendment, and they may remain in place in some form. But they are not ideal.  

For a matter as important as dual incapacity, which could result in there being no healthy president or even contending claimants to the Oval Office (e.g., an arguably incapacitated president and vice president in a contest with the speaker), a statute should outline what would need to take place. Indeed, the Reagan/Bush/Clinton plans themselves conceded that “no guidance can be given with any legal certainty.” The earlier plans were also tentative (e.g., “One way in which this goal might be obtained”). And they were vague. There is no clear guidance on how the president and vice president might regain their powers and duties (e.g., What happens if they regain their capacity at different times?) or how the speaker and the Cabinet would initiate the inability determination (e.g., Does the Cabinet approach the speaker or vice versa?).   

The current pandemic emphasizes the need for the executive branch and Congress to fashion statutory procedures to address a joint incapacity scenario before it occurs. These earlier contingency plans offer a useful starting point with the Cabinet and speaker having to agree on the existence of dual inability. Other constructive proposals could also be consulted. An appropriate statute would not only expand upon and clarify these earlier executive branch guidelines but also have the benefit of surer legal footing as the legislation would be based on powers the Constitution delegated to Congress. Moreover, a statute would provide greater legitimacy than these previously confidential plans as it would be a public document approved by the nation’s lawmakers.      

Obviously, the poor relations between the White House and the speaker and the upcoming election likely foreclose legislative action before November. Nonetheless, it is in the interests of both parties to establish clear procedures soon. The president and vice president stand to gain from added clarity in how they would regain their powers and duties if they were ever both deemed incapacitated. And the speaker stands to gain from clearer direction regarding how and when she might take action in helping determine whether dual inability exists. Such a reform would help minimize criticism of the speaker for being either too reluctant or too forward-leaning. For his part, Democratic presidential nominee Joe Biden could help defuse the question – real or imagined – of his own health by endorsing a legislative solution. 

Above all, the executive branch and Congress taking such steps would be in the national interest. Adopting an appropriate statute would not only better position the United States to address the COVID-19 crisis; it would stand as an enduring safeguard for the presidency and the country well after the immediate participants have left the scene. 

Roy E. Brownell II is an attorney living in Washington, D.C. and is author of “What to do if Simultaneous Presidential and Vice Presidential Inability Struck Today,” which appeared in Fordham Law Review and “Vice Presidential Inability: Why It Matters and What to do When it Occurs” recently published by Hofstra Law Review. Brownell is former deputy chief of staff and counsel to U.S. Senator Mitch McConnell. Prior to that, he served as a senior adviser for Senate affairs at the U.S. Department of State. He also worked for the U.S. Agency for International Development, for three U.S. Senate committees and for a Member of Parliament in the British House of Commons.