Trump’s Illness Exposes Weakness In Our Continuity-of-Government Provisions

What happens if a candidate is incapacitated during after Election Day but before inauguration?

By
20

Days after testing positive for the novel coronavirus, President Trump may emerge from Walter Reed Medical Center relatively unscathed from the pandemic that has killed upward of 209,000 Americans. In a recorded speech shared to Twitter, the president thanked the nurses and doctors who are overseeing his treatment and assured followers that he “learned a lot about COVID” during his stay. 

Although Trump seems to be on an encouraging path to recovery, that path has been anything but straightforward. White House Chief of Staff Mark Meadows said Saturday that the president’s doctors had been “very concerned” about Trump’s deteriorating condition, and cautioned that “he’s not out of the woods for the next 48 hours or so.” The president’s blood oxygen level has reportedly dropped below the normal range at least twice since his positive test, requiring additional oxygen and steroid therapy. Trump’s ability to carry out the duties and powers of the presidency during his hospitalization remain unknown, but his bout with the deadly virus illuminated underlying problems with our government that experts have pointed to for years. The fact remains: We are woefully unprepared for a crisis of presidential succession.

In 2009, the AEI-Brookings Continuity of Government Commission—which formed in response to the terrorist attacks of 9/11—highlighted massive gaps in the country’s contingency plans in the event that a disaster kills or incapacitates several individuals in the line to be president at the same time. Eleven years later, Congress has yet to make any meaningful legislative changes to address this problem.

The Continuity of the Presidency report opens with a thought experiment. Imagine a scenario in which an al-Qaeda sympathizer diverts a plane into the Capitol building, killing and wounding many (as well as stirring up a general commotion). The president, vice president, speaker of the House, and president pro tempore of the Senate are nowhere to be found. Should the secretary of agriculture assume the presidency quickly to avoid a power vacuum? What if a higher-ranking official resurfaces unharmed? 

Keep reading with a free account
Create a free Dispatch account to keep reading Get Started ALREADY HAVE AN ACCOUNT? SIGN IN
20
By
Comments (20)
Join The Dispatch to participate in the comments.
 
  1. Maddmac

    So..what would be the "what happens" part? Aren't we already there?

    Collapse
  2. Avatar photo
    Aylene Wright

    I recall reading that AEI piece. Wonder if it's still available to read? The scenario made me think "whoever wrote this should submit a movie script to Hollywood".

    Among many melodramatic moments in what was pretty close to a worst-case scenario, the President is at first missing and presumed dead, so the Succession Act is activated and a new President sworn in. But then, the original President is miraculously found alive, and restored to power. Unfortunately, his behavior is quite erratic, raising 25th amendment concerns. (It is implied he suffered some kind of traumatic brain injury). He eventually dies for real, triggering yet another succession crisis.

    One of the problems with current law that scenario also highlighted, is that once a successor President is chosen, that person has to resign their current office. Which is fine if they remain POTUS until the end of the term. But what about cases of incapacity without death? If both POTUS and VP are affected, and succession goes to the Speaker of the House, that person has to resign from Congress, knowing the actual POTUS could regain capacity and boost her back out. But she can't just go back to Congress. This scenario was brought up in the West Wing, too. A Cabinet secretary ascending to POTUS could at least be replaced by a Senate confirmed replacement.

    I also wonder, since the Trump Administration has so many Acting Secretaries and other officials. Is an Acting Secretary eligible to become POTUS under the Succession Act? And since Elaine Chao is a naturalized citizen, I assume she'd be ineligible and need to be skipped. Too bad, as the idea of Cocaine Mitch as First Gentleman is also really entertaining.

    Collapse
  3. Avatar photo
    Dave

    Another weakness not mentioned in this article is the Congress's stubborn refusal to allow distance voting and virtual sessions.

    Collapse
  4. Avatar photo
    DougAz

    Why political pundits revere Dead Madison as a Deity, is just beyond ridiculous. Only Conservatives would fight over Nanci Pelosi succeeding after the VP is vacated. That precedent was of course set by the good, but inanely naive Gerald Ford, who succeeded one crook Spiro Agnew, and pardoned the other Dark Knight crook Tricky Dicky Nixon.

    If it is Nancy Pelosi - just deal with it like we had to with the one-man vote Bushy Jr.

    Collapse
    1. Avatar photo
      Dave

      Gerald Ford didn't become VP because of succession, he was nominated to the position by Nixon after Agnew left. Nixon didn't have to nominate Ford, he could have nominated anyone eligible for the office.

      And holding one of the most influential Founding Fathers in high regard is not making him a "deity".

      Collapse
  5. Avatar photo
    Dave

    The issue with a succession that then went to cabinet officials instead of the House Speaker and Senate Pro Temp first, is that you’re instantly devolving into someone that was elected by nobody. At least the Speaker is chosen by her district voters, then elected to the position by the rest of the House. The Secretary of State is elected by nobody, although he has been confirmed by the Senate, so there’s that.

    That said, I’d have no problem with the three original cabinet positions — Secretary of State, Secretary of Defense, and Attorney General — being the next in line after the Vice President. I’d prefer to have the House Speaker ahead of, say, Secretary of Agriculture or Commerce.

    Collapse
  6. Nathan

    There is no reason congress should be in the line of succession. the executive branch is supposed to handle matters of foreign affairs and congress handles domestic. State, defense, DHS, justice, treasury and stop there. If those guys/gals are dead, go to assistant state, defense, etc. Governors and congress can keep domestic issues going.

    Collapse
    1. Avatar photo
      James Spiller

      You might be surprised by how much treaty passing, war declaration, military budgeting, trade with foreign nations regulating, and such, all explicitly Article I powers, people think of as foreign policy.

      Collapse
  7. Curtis Jensen

    Interesting article. If the speaker of the house becomes the presidential successor, and the speaker is of a different political party, how would the Supreme Court feel about the acting president’s removal powers? Does the unitary executive theory still apply in this situation?

    Collapse
  8. Avatar photo
    Mike B

    Gee, the concerns about this election, with the executive branch preemptively claiming fraud before voting even began and openly warning that they might not respect the outcome, weren't bad enough already...

    Collapse
  9. Avatar photo
    Nick H

    Getting the congressional leaders out of the order of succession might be of interest to scholars, but in the real world Congress will write any updates to the Presidential Succession Act. They're not going to write themselves out. That genie won't go back in the bottle short of a new Amendment process that bypasses Congress.
    That kind of convention might be necessary to fix any of these succession issues, since I don't think Congress really wants to fix them. Too many people would rather see it left vague and unclear. If there are no clear rules, then they can always argue for the interpretation that most benefits their side should some situation arise.

    Collapse
  10. Avatar photo
    Scarlette Tarte

    Trump in general has exposed weaknesses in our system, and not just in the transfer of power in case of incapacitation. What to make of the emolumants clause. Trump's inaugural committee raising millions of dollars from influence seekers, but not having to be held accountable for how that money was spent, nepotism in hiring (an issue under JFK as well) reversals on transparency issues like White House visitor logs, the contracts and size of contracts that president's family can receive from the federal government, making sure federal employees don't engage in political activities, the loopholes in the hatch act, the lack of transparency of tax returns, the use of the justice department to run interference, even in private law matter, etc, etc.

    Not to mention the whole "a sitting president cannot be indicted", giving criminal presidents the need to stay in office to avoid prosecution.

    Yeah, Trump has been a whole mess of horrible, as he does not honor our NORMS. Norms are not laws, but have guided most presidents since the beginning. Because of him, it looks like we are going to have to make ALL of the above into laws.

    Collapse
Load More