A Winding Constitutional Path From Trump to Pence to Pompeo The president is sick, so here’s a review of the laws governing succession. By John Yoo
What if President Trump becomes seriously ill and unable to do his job? Under the 25th Amendment, the president can report to Congress that “he is unable to discharge the powers and duties of his office.” Vice President Mike Pence would become acting president until Mr. Trump sends a second written declaration that he can perform his duties again.
But suppose he’s unable or unwilling to issue the declaration. The 25th Amendment provides for that too. If the vice president and a majority of “the principal officers of the executive branch”—defined by statute to include the heads of the 15 major executive departments—declare in writing that the president “is unable to discharge the powers and duties of his office,” Mr. Pence becomes acting president “immediately.”
Mr. Trump’s opponents have often mused about invoking the 25th Amendment to remove him from office for behavior they regard as erratic. The idea reflects a misunderstanding of how the amendment works. Even in the unlikely event that Mr. Pence and the cabinet backed such a move, the president could challenge it. The disagreement would be resolved in the president’s favor unless two-thirds of both houses of Congress overrode him—and even then, his removal would be temporary. The 25th Amendment deals with cases of genuine debility, such as might arise if the president became seriously ill.
Mr. Pence has tested negative for the coronavirus. But suppose that changes and both he and Mr. Trump are too sick to perform the presidency’s duties. Article II of the Constitution states that in “the case of removal, death, resignation or inability” of both the president and vice president, Congress has the authority to declare “what officer shall then act as president” until the disability ends or a new president is elected. The term “officer” poses a problem for the current law.
The Presidential Succession Act of 1947 puts two congressional leaders in the line of presidential succession. The House speaker (Nancy Pelosi) is immediately behind the vice president followed by the Senate president pro tem (Chuck Grassley). From there, the order continues to the secretary of state (Mike Pompeo) and the other cabinet members in the order in which their departments were created.
But Yale law professor Akhil Amar persuasively argued in 1995 (at the prospect of Speaker Newt Gingrich becoming president should Congress impeach Bill Clinton) that this provision is unconstitutional. The Constitution generally—but not always—uses “officers” to mean members of the executive branch. Further, the Incompatibility Clause of Article I provides that “no person holding any office under the United States, shall be a member of either house during his continuance in office.” That implies that neither Mrs. Pelosi nor Mr. Grassley could become acting president without resigning from Congress, which would remove them from the statutory line of succession. The cleanest reading of the law, then, is that if Messrs. Trump and Pence were both unable to serve as president, Mr. Pompeo would become acting president.
The imminence of the election introduces more wrinkles. Suppose Mr. Trump remains disabled or dies. The Republican Party could seek to substitute his name on the ballot. But it’s probably too late for states to alter the ballots, many of which have already been mailed out and returned.
In that case, the much-maligned Electoral College could stabilize the system. When voters cast a ballot for Mr. Trump or Joe Biden, they are actually choosing slates of electors pledged to support one of the candidates. Even though the Supreme Court held this summer that states can punish electors who don’t keep those promises, the Founders intended for them to exercise discretion. In any case, if the candidate is unavailable to serve, an elector commits no breach of faith in voting for someone else.
In 1872, after Democratic nominee Horace Greeley died in late November, his 66 electors split among four other candidates. (Three votes cast for Greeley weren’t counted.) If that happens to the ballot victor, the Electoral College could lack a majority.
If that happens, under the 12th and 20th amendments the election would go to Congress. The House would choose the president, with each state delegation getting one vote; the Senate, the vice president.
In the current Congress, Republicans hold majorities in 26 state House delegations, Democrats hold 23, and one state is evenly split. But it would be the new Congress that would vote, and it could fail to reach a majority either through a 25-25 split or several evenly balanced delegations. Candidates could reach a deal through their House supporters, as John Quincy Adams and Henry Clay did in 1824 to deny Andrew Jackson the presidency. But if the House proves unable to reach a majority, the vice president-elect would accede. But that assumes there is one. The Senate could also divide 50-50 with no vice president available to cast the deciding vote.
If there’s no majority of electors, House delegations or senators, the federal succession law would kick in again. Mrs. Pelosi might think her time has come, but the argument would be stronger for inaugurating President Pompeo.
Mr. Yoo is a law professor at the University of California, Berkeley, and author of “Defender in Chief: Donald Trump’s Fight for Presidential Power.”
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