COVID in the capital


Since Donald Trump has been diagnosed with COVID-19, the health of the president is suddenly an issue. And given the nasty trajectory the disease is capable of taking, the possibility of presidential disability must be considered. Unsurprisingly, Speaker of the House Nancy Pelosi has taken the opportunity to score political points by considering legislation to change the specific procedures on how to deal with presidential disability — a move that is sure to go nowhere but no doubt thrills her party’s liberal base.

Political angling aside, there are some basic questions members of the public are surely wondering. What happens if the president is incapable of discharging his duties? What do law and history tell us? While it is unlikely that these will actually come into play, it’s no doubt possible, and understanding what our government is supposed to do can be useful.

The 25th Amendment, ratified in 1967, deals with vacancies in the executive office. It explicitly affirms that if the presidential office is vacated, the vice president becomes president. This had been understood by implication and historical tradition, but when President William Henry Harrison died in 1841, it was not entirely clear whether Vice President John Tyler became president in his own right or simply acting president. Tyler importantly asserted that he was the president — arguably his only positive contribution to American history (he would later vote to secede from the Union as a member to the Virginia Convention in 1861). The 25th Amendment also calls for vacancies in the vice presidential office to be filled through a process of nomination by the president and ratification by Congress. It gives the president the power to transfer executive power to the vice president when he is unable to perform his duties. And in the case that the president is not able to make a formal transmission, it invests the power in “the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide.”

It is this latter provision that is garnering attention right now. “How sick is the president?” is a question for the medical team attending to him. “How sick is too sick to continue to be president, and are we nearing that point?” are, ultimately, political questions asked of the men and women of the president’s Cabinet.

Pundits have wondered if the Cabinet should transfer power to Vice President Mike Pence while Trump has been recuperating. That is a matter for the political process, which is informed under the 25th Amendment by our constitutional system’s doctrine of separation of powers. If the president is to be declared incapable of discharging his duties, that decision rests with the “principal” officers of the government — not Congress or the courts. The only direct role Congress has in the process of presidential disability (beyond establishing the laws to effectuate the 25th Amendment, a power it shares with the president) is to resolve a dispute within the executive branch — namely, if the Cabinet and the vice president believe the president is still unfit but the president believes he is well. If the president is going to be stripped of power because of disability, that decision is to be made within the executive branch alone. James Madison hinted at this reasoning in Federalist 51, in which he noted that the separation of powers requires that “the members of each department should be as little dependent as possible on those of the others.” Otherwise, members of one branch might seize power by interfering with the officers of the other branches.

The congressional version of this is located in Article 1, Section 5, which gives each chamber the exclusive power to “be the Judge of the Elections, Returns, and Qualifications of its own Members … determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”

Similarly, judges on federal courts enjoy tenure for good behavior and cannot be removed by any traditional reason. The only exception to these rules, whereby the members of each branch are independent from the others, is the power of impeachment and removal, which is housed exclusively in Congress. But impeachment cannot be for no reason — the Constitution states that the impeached must be guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.” It also requires the House to indict and two-thirds of the Senate to convict. That is a high bar.

So, outside of clear instances of executive malfeasance, the president or the Cabinet gets to decide whether the president can fulfill his duties. That’s it. Congress mainly arbitrates disputes between the two, while the people only get a say at the ballot box. And though the 25th Amendment was only ratified in 1967, the executive historically has been protective of its prerogatives on questions of presidential capacity, even when that has meant not disclosing fully to the people what is going on. This long history of such concealment no doubt informs the public and the media’s skeptical dissection of every update on Trump’s condition.

The first presidential health scare came very early, when George Washington contracted influenza and pneumonia in 1790. Rumors circulated around Congress, at that point located in New York City, that the president was sure to die, or that if he lived, he would be deaf. But Washington recovered, and the executive administration of the government was not interrupted. In the summer of 1813, Madison became extremely ill during a special session of Congress called to deal with the problems of the War of 1812. Madison usually fled the swampy climate of Washington, D.C., for the more pleasant environment of his Montpelier estate, located in the Virginia piedmont, but he had stayed to give direction to Congress when he became severely ill. Again, rumors swirled that the president was not long for the world, and since Vice President Elbridge Gerry was recovering from a stroke (and would die the following year), there was the possibility of two vacancies in the executive. But Madison recovered, never yielded the executive authority, and indeed never fully disclosed to Congress what had afflicted him.

The first real succession crisis occurred with the assassination of President James A. Garfield in 1881. Charles Guiteau shot Garfield at a train station in Washington, D.C., on July 2, but the president did not die right away. In fact, the early prognosis seemed hopeful, but the efforts of the president’s doctors to remove the bullet only made matters worse, and he died on Sept. 19. All the while, Vice President Chester A. Arthur was waiting in the wings but unwilling to take over the executive duties officially, lest he appear to be grasping for power — even though Garfield was too weak to carry them out.

Arthur’s successor in the White House, Democrat Grover Cleveland, would also have a health scare during his second term. Cleveland’s doctors discovered an abnormal growth in his mouth in 1893, at which point the country was sinking into the worst economic downturn outside of the Great Depression. Doctors performed a secret surgery on the president aboard a boat, under the cover story that the president was vacationing. Cleveland had part of his jaw removed and later was given a rubberized prothesis as a replacement. When the press grew suspicious, the administration leaked false information that he merely had two bad teeth replaced.

In 1919, Woodrow Wilson was barnstorming the country in support of the Treaty of Versailles, which ended World War I and created the League of Nations. Exhausted from the tour, Wilson returned home in September, only to suffer a severe stroke the next month, which left him partially paralyzed. Not only was the country at large not informed of the president’s condition, Wilson himself was never told how badly he had been injured. Political insiders knew of the graveness of his condition, but Vice President Thomas Marshall refused to assert a constitutional claim to the presidency.

Wilson’s assistant secretary of the navy, Franklin D. Roosevelt, would go on to become president some 13 years later, and remain in office for more than a decade thereafter, guiding the country through both the Great Depression and World War II. All this had a terribly debilitating effect on the president’s well-being, which is evident when one compares pictures of him at the start of his presidency in 1933 to those at the end, in 1945. Like Wilson, FDR was not fully informed by his doctors how badly his health had suffered. And there were certainly no details leaked to the public. Indeed, FDR had carefully hidden the ravages of polio from the people, taking care never to be pictured in his wheelchair. Still, political insiders who spent any time with the president knew there was a high chance he would die in office, which led to one of the most consequential vice presidential nominations in 1944, as party insiders competed with one another to secure the preferred candidate. Ultimately, the bosses chose Harry Truman because they could all live with him.

President Dwight Eisenhower, who had served under FDR as the supreme commander of allied forces, became president in 1953. He had a serious heart attack in 1955 that left him hospitalized for six weeks. During that period, Vice President Richard Nixon and Secretary of State John Dulles took on most administrative duties in the executive branch. Later in his administration, Eisenhower suffered a stroke and also had surgery due to Crohn’s disease.

In 1981, President Ronald Reagan was shot by John Hinckley. Though this occurred after the enactment of the 25th Amendment, power was never officially transferred to Vice President George H.W. Bush, and there was a great deal of confusion in the immediate aftermath. When Reagan was struck, the vice president was in Texas, and Secretary of State Alexander Haig, speaking to the press, assured the country that he was “in control here, in the White House,” although technically he was fourth in the line of succession.

Ironically, for all the drama surrounding presidential health and successions up until the enactment of the 25th Amendment, its invocations have been anodyne. President Reagan formally transferred power under it to Vice President Bush in 1985 to have colon surgery, and President George W. Bush invoked it twice, in 2002 and 2007, when he underwent colonoscopies. It likely should have been invoked when Reagan was shot in 1981, but the confusion surrounding the assassination kept the Cabinet from acting swiftly.

Indeed, the events of 1981 probably serve as a lesson for why it would be hard in practice to declare a presidential disability in an orderly fashion. It is the flip side of the virtues of a unitary executive. The Founding Fathers wanted a single person to be president rather than a council because he can provide vigor, direction, and swift action when it is called for. The 25th Amendment, meanwhile, empowers a council — the presidential Cabinet — that will inevitably be slow to act relative to what the president can do as a single individual. Factoring in the president’s desire to keep physical weakness as quiet as possible, the vice president not wanting to look like he’s grasping for power, and the doctrine of separation of powers that keeps Congress mostly out of these considerations, it is hard to see anything but confusion surrounding presidential health scares. The 25th Amendment offers guidance and clarity, but it is just a text that has to be carried out by people in the midst of a crisis with multiple competing interests. Each such crisis is unique but similarly confounding.

Jay Cost is a visiting fellow at the American Enterprise Institute and a visiting scholar at Grove City College.

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