What Happens If Pence Needs to Become ‘Acting President’?

What Happens If Pence Needs to Become ‘Acting President’?

When Trump voluntarily hands over power to Mike Pence for a period of time, he is following a literal process that in previous White Houses was usually viewed as a short-term technical affair rather than a sign of long-term power shift. The longest term of office of an “incumbent president” was only eight hours.

But Trump, who is notoriously sensitive to apparitions and has worked furiously to maintain the impression that he is fine even while being hospitalized for Covid-19, may be reluctant to hand over authority to Pence, even if he is Case should be necessary. If Pence had to take power without Trump’s approval, it would put the country on brand new ground and spark a series of complex constitutional contingencies that could and even lead to questions about the precise definition of Trump’s cabinet, the constitutional relevance of incumbent Homeland Security Secretary Chad Wolf whether Pence could attend the upcoming Senate confirmation hearings for Supreme Court candidate Amy Coney Barrett. And if Pence later falls ill himself, the nation will quickly find itself in a truly unknown territory.


For most of the nation’s first two centuries The country had simply backed away, completely ignoring the question of a president’s long-term illness or incapacity. At a time when the news was slow to get out and there was less time pressure on the presidential decisions, the country and presidents came due with short periods of time without conscious presidents. Grover Cleveland was operated on twice for oral cancer in the summer of 1893. He hid on board a yacht and didn’t even tell the Vice President that he would be passed out during the procedure. during the last 18 months From Woodrow Wilson’s presidency after a massive stroke, his wife Edith appears to be the country’s top decision-maker in a tense situation in which his vice president seemed reluctant to seize power without clear instructions.

It wasn’t until the advent of nuclear weapons – when the speed of nuclear missiles required having a president minute by minute and hour by hour – that Congress moved in 1965 to codify a procedure in the 25th amendment to the Act’s temporary or permanent transfer the authority of the president after illness or disability.

The procedure described for an “incumbent president” was first used overnight on Saturday, July 13, 1985, when Ronald Reagan took power to George H.W. Bush for about eight hours undergoing colon surgery to remove a cancerous polyp in his colon and about two feet in his small intestine.

It wasn’t until Saturday, June 29, 2002, that a President was anesthetized: As a medical staff and the President’s doctor, Dr. Richard Tubb, planned a colonoscopy for George W. Bush, White House staff this summer. A profuse caution chose to invoke the 25th Amendment. “This wasn’t a panic situation,” recalls then White House Chief of Staff Andrew H. Card, Jr. “There have been people who felt we didn’t have to, but we thought it was better to be on their side wrong. ” get it right. “

Tubb joked to reporters as he discussed the expected Power transmission During a press conference the day before, he said the move was in part to provide the president with the smoothest experience possible: “I performed the procedure myself, both with and without sedation, and I will tell everyone here that I recommend it to be carried out with sedation. ”

The next morning when the trial began, the White House secretary gave identical information Two paragraph letters Signed by President Bush to Speaker Dennis Hastert and Senate President Robert C. Byrd, who reported, “In accordance with the provisions of Section 3 of the twenty-fifth amendment to the United States Constitution, this letter is my written declaration that I am unable to perform the constitutional powers and duties of the office of the President of the United States. Pursuant to Section 3, the Vice President shall exercise these powers and duties as the Acting President until I provide you with a written statement that I can resume performing these powers and duties. “Later he sent a similarly brief note in which he revoked the transfer of power.

Card, who stood by the president’s side during treatment at Camp David, carefully choreographed the transfer and resumption of power. He worked with the President’s Personnel Secretary and White House Attorney to ensure the delivery of the letters to the House and Senate, and informed the Vice President of Phone of any development and ultimately – as an official witness – to decide when the President was coming out sufficiently awakened under anesthesia to resume the presidency.

While the White House had advised the public that the move was expected, the exact times of the transfer of power on Saturday were not disclosed for security reasons until the operation was completed and the president was back in control. “It was actually a bit funny,” says Card, remembering standing next to the dazed president. It was, ‘Talk to me – what day is it today? Are you in? Can you count to ten “I tried not to let emotions disturb. You want to give the president a reassuring presence. “After confirming the president was awake and all right, Card agreed to allow Bush to resume presidency, called the Vice President and spoke to White House staff to deliver the second letter. In total, Cheney was “Acting President” for 133 minutes from 7:09 am to 9:24 am.

Five years later the procedure was repeated at a subsequent colonoscopy appointment; Bush transferred power again for a similar period on July 21, 2007. Cheney served as the “acting president” for 125 minutes from 7:16 am to 9:21 am.

In 2007, the White House stressed that the episode was so routine that Cheney spent his normal morning; He was at his home on the east Maryland coast playing with his dogs. At the time, the White House stressed that he had taken no action at all by the president. “To the surprise of Cheney haters everywhere, he didn’t take the opportunity to start a war, apologize for Scooter Libby, or send Carl Levin to Gitmo for questioning,” he said Weekly standard teased.

Whatever Standards Stephen Hayes later discovered that the move had obviously had a more serious impact on Cheney than was initially known. That morning he sat down and wrote a single letter to his five grandchildren – the only known document in American history to be signed by an “incumbent president” – calling for the war on terror and writing, ” You will understand the sacrifices each generation makes in order to preserve freedom and democracy for future generations. “

Because of their planned nature and brevity, power transfers were treated as routine during Bush’s tenure. While Cheney could technically wield any presidential power he wanted during the time, few specific procedures or plans were put in place during the move. “It’s more of a technical matter. If someone goes into nuclear war, the vice president is responsible, but that’s about it,” a former White House security officer told me. “Everyone is ready, if the president never wakes up – then have You a completely different story. ”


Reagan and George W. Bush both used so-called “Section 3” transfers referring to the part of the 25th Amendment that enables the voluntary and planned transfer of power of the President through this simple letter to the leaders of Congress.

While the exact policies and procedures by which Trump’s White House temporarily transfers power to Mike Pence are unknown, two Fordham Law School scholars, John Rogan and Roy E. Brownell II, have been able to access and publish it in recent years a copy of special 208-page folder prepared for the Clinton White House on “Contingency Plans – Death or Impairment of the President”, and legally the procedures today would be virtually identical.

“If possible, the letters should be typed on the President’s stationery. However, if circumstances so require, the letters can be handwritten on any type of paper, ”says the Clinton folder. “The letters should be personally signed by the president if possible, but a reliable manifestation of his understanding and approval would be sufficient.” In such circumstances, the transfer of power takes place legally the moment the letters are sent or placed in the hands of a White House messenger – and no new oath is required for the Vice President – and receipt of the letters by the congressional leaders is really just one Formality.

If Trump’s condition worsened in the coming days, or if he had a medical procedure that required anesthesia for a limited period of time, he would likely use this planned “Section 3” transfer, following the example of Bush and Reagan, and letters to Nancy Pelosi send and Chuck Grassley announces the transfer of power and temporarily makes Pence the “incumbent president”. The routines set by previous administrations would work flawlessly, and given the Trump-Pence consensus, the U.S. administration would likely be barely noticeable, even if such a transfer of power took a few days.

Finally after a new book by New York Times Journalist Michael Schmidt who was Vice President Mike Pence told ready to take over the presidency powers after an as-yet-unresolved urgent weekend trip from Trump to Walter Reed Hospital in November 2019, implying that doctors expected the president to need anesthesia during part of his treatment. (For his part, Pence refused to acknowledge this notification, saying, “I can not remember“Requested to stand by to become” acting president “.)

The White House has so far gone out of its way to say that no plans to transfer authority to Pence are underway. The president and his family have repeatedly tweeted and posted videos about how hard Trump works at Walter Reed. It’s hard to imagine Trump willingly relinquishing power under all circumstances but the worst.

The 25th Amendment gets more interesting – and more complicated and full – when Trump’s condition unexpectedly worsens and there is no time for a voluntary transfer of power, or the norm-breaking president for some reason unwilling to surrender authority and Pence deems it necessary to power seize.

There is “Section 4” for this.

A so-called involuntary transfer of power from the President in Section 4 is required when the President is incapacitated and unable to relinquish control or, in more extreme scenarios, is unwilling. Under this procedure, the vice-president and a majority of cabinet leaders can sign or agree to a declaration that the president cannot perform his duties. After that, the Vice President immediately takes on the role of the “incumbent President”.

In particular, there is some ambiguity beneath the wording as to whether the “majority” is determined by the formal cabinet, heads of government departments, or by people of “cabinet rank” which in recent administrations have included people like the UN ambassador and the director of In the Clinton trial, the Vice President was asked to assemble a majority of cabinet officials so as not to question the legitimacy of the transfer of power. Trump gave Cabinet rank to seven officials outside of government departments, including the U.S. sales representative, White House chief of staff, CIA director, and the head of the EPA. Under the Clinton Procedure, an additional four “votes” from these officials would be required to declare the President incapable of performing his duties. Beyond the mere question of cabinet rank, Trump’s personal inclination towards staff in his administration will raise another legal question: Fordham’s John Rogan written It is not clear how Trump’s preference for “incumbent” cabinet secretaries would affect the total number of votes to declare him unfit for office – whether they could vote at all or whether their departments would count towards the total number of votes required. Would incumbent Homeland Security Secretary Chad Wolf, one of Trump’s most loyal cabinet votes, get a vote if he were declared unfit for office?

Once the Vice President has assumed the role of “Acting President” under Section 4, he or she remains accountable until the President sends another letter to the Congress management stating that he or she can resume office. However, the lengthy passage of Section 4 describes a nearly 200-word schedule and procedure by which the Vice President and Cabinet can question the President’s suitability for office and allow Congress to cast two-thirds of the House and vote of the Senate to decide that the President remains unable to serve as President and allows the Vice President to remain as incumbent President.

“A transfer of authority under Section 3 is much preferable to a delegation under Section 4,” explains the Clinton-era folder, and “less legally ambiguous.” Part of what makes the transfer of Section 4 operationally problematic – especially in this day and age with the pace of news, technology, and global decisions – is that Section 4 gives the Vice President and Cabinet four days to resume powers The President’s Question It is unclear when a President’s powers will come back into force – immediately after a letter declaring himself fit for office has been sent, or after the four-day challenge period has expired? White House attorneys have previously argued that they believe the “incumbent president” would not be ready until after the four-day wait, despite recommending a public statement from the vice president and cabinet that they do not question the president’s use being put out of his / her powers during this time frame could help alleviate any concern or instability.

In the current White House situation, this could mean that if Trump’s condition worsens unexpectedly, Pence will be “President-in-Office” for at least four days, even if Trump quickly regains consciousness. How the President and Vice President would navigate such a dynamic is unclear – and there is no clear remedy to expedite the transfer of powers back.

The involuntary assumption of powers of the president in circumstances other than an apparent medical emergency with Trump passed out would surely prove to be one of the most difficult political moments in American history. while rumors have long put into circulation The fact that various cabinet officials have at times debated whether to activate the 25th Amendment to declare Trump incapable of office has proven politically radioactive. Deputy Attorney General Rod Rosenstein was about to be fired According to public reports, he had talked about removing Trump from office. Any attempt to invoke “Section 4” would probably only take place when there is a critical and obvious need for such a transfer of power from the President. Famously vengeful and explosively tempered Trump (not to mention his most dedicated MAGA supporters) would probably make no kind efforts to remove his presidential offices without his OK – and the incumbent Republican presidential ticket can barely risk a power struggle weeks in the White House before an election , where the treatment (and mistreatment) of the Covid-19 pandemic is a key election issue. The fact that Pence and Secretary of State Mike Pompeo are both likely to fight for the 2024 Republican nomination only increases the potential political risk of such a calculation.

One additional wrinkle that could come into play in the ongoing affirmation battle of the Supreme Court is that the Vice President, as “incumbent president”, would no longer serve as President of the Senate – meaning that if he ultimately takes power, Pence will eventually take over an extended period of time would not be able to cast a groundbreaking vote for Amy Coney Barrett, which limits the GOP Senate’s path to successful endorsement, especially given the recent one Covid-19 diagnoses from three GOP senators.

Under the more extreme doomsday scenarios involving the deaths of both the President and Vice President, the President’s succession would then go to the Speaker of the House (although it is not entirely clear that the succession is legal), the Senate President, and then the Head of department of the cabinet in descending order of establishment of their department.

At such a moment, the House Speaker, Senate President, or Cabinet officials would take a special oath – not the President’s oath – and become the “incumbent president” for the remainder of the president’s term. For the Speaker of the House of Representatives and the President of the Senate, taking this oath is legally regarded as a simultaneous resignation as Speaker of the House and a member of Congress, a prerequisite for taking office in the executive branch.

However, there is an additional and uncertain fold in the presidential succession process known as the “replacement clause”. According to legal and constitutional scholars, the rise of a cabinet official to “incumbent president” can only be short-lived. It seems that a “pre-emptive” successor to the president could take over the office as soon as that office is occupied, e.g. For example, if the Secretary of State or another Cabinet Secretary acted as the “incumbent President” because there was no House Speaker or Senate President Pro tem – for example, both were killed in the same incident as the President and Vice President – that that person as soon as the House or Senate had elected a new leader would actually have precedence and assume the mantle of “incumbent president”. “Depending on whether the Senate is reconstituted first and the Senate Presidential System takes over the office of the incumbent cabinet secretary as the” incumbent president “, it seems quite possible that the” incumbent presidency “changes hands several times in a short window during a short window The culmination of a major disaster or crisis.

Furthermore – and more worrisome for a pandemic and disease ripping through the ranks of senior White House officials – the 25th Amendment and “incumbent president” procedures begin to fall apart when the vice presidency is affected by death or disability at the same time in which the president is incapacitated or dead. In such circumstances, the Clinton steward warns: “No legal security can be given.”

A legal memo from the Carter administration, written by future Senator Robert Torricelli, then an advisor to Vice President Walter Mondale, concluded: “The twenty-fifth amendment appears to have raised almost as many questions as it answered. The timing of modern events will not take into account the uncertainty that arises from a long process of legal interpretation. “

When something happens to Mike Pence and the US is faced with “incumbent President Pelosi,” “incumbent President Grassley,” or “incumbent President Pompeo,” there will be no emergency tie waiting at all and there will be almost certain legal disputes as different officials and branches of government battling until Aug. January 2021 or even beyond for control of the White House.


Please enter your comment!
Please enter your name here