What Trump's COVID-19 diagnosis might mean for the 25th Amendment

This constitutional amendment ensures a smooth transfer of power if the president gets very sick from the coronavirus. But who gets to make that determination?

Marguerite Reardon Former senior reporter
Marguerite Reardon started as a CNET News reporter in 2004, covering cellphone services, broadband, citywide Wi-Fi, the Net neutrality debate and the consolidation of the phone companies.
Marguerite Reardon
7 min read

Speaker of the House Nancy Pelosi speaks during a news conference at the US Capitol Friday to introduce legislation based on the 25th Amendment that would create a Commission on Presidential Capacity to review a president's fitness for office.

Drew Angerer/Getty Images

The news that President Donald Trump tested positive for COVID-19 has thrown a monkey wrench into an already fraught election season. It's raised questions about who would lead the country if the president were to become gravely ill, and when that might be determined. 

Now there are new questions about who should be able to make the decision of when a president can't fulfill his duties. On Friday, House Speaker Nancy Pelosi introduced legislation that would allow Congress -- using the 25th Amendment to the Constitution -- to take power away from a president if he were to become incapacitated. But Pelosi, a Democrat from California, insists the bill is not about President Donald Trump. 

"This is not about President Trump," she said during a press conference. "He will face the judgment of the voters. But he shows the need for us to create a process for future presidents." 

The news comes a day after Pelosi accused Trump of being "in an altered state" from his coronavirus treatment, which includes a corticosteroid drug called Dexamethasone that can produce potential negative side effects on the brain, influencing aggression, anxiety and mood.

Trump announced last week that he had tested positive for the novel coronavirus. Last Friday, the president was hospitalized at Walter Reed National Military Medical Center, where he remained until Monday.  

Since then, Pelosi has pushed for Trump to disclose more about his health. She has noted his "strange tweet" that halted talks between the White House and Congress on an economic relief package to help Americans affected by the coronavirus. 

Since leaving the hospital, Trump's doctor Sean Conley has said that Trump's condition has been "stable" and he's not shown signs of the illness progressing. But some people have questioned the seriousness of his illness and the potential effects of the medications he was taking to treat the COVID-19 infection. The White House has declined to state when Trump last tested negative for the virus.

Trump is 74 and overweight, two factors that put him at greater risk of experiencing serious complications from the virus. That has some people wondering what would happen if the president's condition worsened and he became unable to perform his duties. 

Earlier this month, the world passed a grim milestone when Johns Hopkins University reported that more than 1 million people had died as a result of the coronavirus. In the US the number of deaths linked to COVID-19, the respiratory disease caused by the virus, has surpassed 210,000.

As the coronavirus has spread across the world, health care professionals have warned that certain groups of people, including older adults and people with underlying medical conditions, are at a higher risk of developing serious complications or dying.

The Constitution has a clear answer when it comes to handling a presidential transfer of power: The 25th Amendment. Though the Constitution originally spelled out that the vice president would step in if a president were incapacitated, it was silent on how that moment would be determined. There were, in fact, long stretches when presidents were down and out and a staff member or spouse took over duties. Such was the case after James Garfield was shot and after Woodrow Wilson had a stroke. 

The issue also arose during the tenure of Dwight D. Eisenhower, who at the time was the oldest person to serve as US president. Eisenhower had suffered both a heart attack and a mild stroke during his first term in office. He and his vice president, Richard Nixon, worked out an arrangement in which, if he were incapacitated, Eisenhower would temporarily hand over power to Nixon. And when Eisenhower determined he was well enough, he'd resume his duties. 

It wasn't until the 1960s, after John F. Kennedy was assassinated, that Congress passed, and the states ratified, the 25th Amendment to the Constitution, which spells out a clear process to ensure a smooth temporary handoff of presidential powers in the event a president can't carry out his duties. 

To offer more detail on what the 25th Amendment is and how the process of invoking it works, we've put together this FAQ.

What does the 25th Amendment say about the transfer of power?

The 25th Amendment to the Constitution, passed by Congress in 1965 and ratified in 1967 when Nevada became the 38th state to approve it, fills a constitutional gap and lays out how and when power can be transferred to the vice president in the event the president can't continue his duties. 

Specifically, Sections 3 and 4 of the amendment outline the process. Section 3 addresses the simple and straightforward scenario in which the president determines for himself that he's incapacitated. It also allows him to determine when he feels he can resume his duties. 

Here's how it works. The president writes to the speaker of the house and president pro tempore of the Senate to inform them he's incapacitated. Once that written notice is received, the vice president becomes acting president. 

When the president feels able to resume his duties, he can send another notice to the speaker and president pro tempore indicating this. Once that's received, he immediately takes back control.

What happens if the president is incapacitated before he's able to pass the torch to the vice president?

The 25th Amendment also addresses when the president is unable or unwilling to temporarily transfer power to the vice president. This is spelled out in Section 4.

Here's how that scenario plays out. Instead of the president transmitting his declaration that he's unable to continue his duties, the vice president and the majority of the president's cabinet notify the speaker of the house and president pro tempore of the Senate. 

As in Section 3, the vice president immediately takes power on receipt of this declaration. 

When the president has recovered and is able to fulfill his duties, he notifies the speaker of the house and president pro tempore. If the vice president and cabinet don't disagree with this declaration within four days, the power of the presidency returns to the president. 

What happens if the president doesn't want to cede power or the vice president and cabinet don't agree he should get his powers back?

If the president disagrees with the assessment of the vice president and the cabinet members, the question of who should be in power goes to Congress, with the vice president in charge during the interim. Congress must agree in a two-thirds majority vote to temporarily hand over presidential powers to the vice president. If it's unable to get a two-thirds vote within 21 days, the president automatically retakes power.

One thing to keep in mind is that even if the president were to lose the congressional vote, he wouldn't be removed from office. So if he disagrees with the assessment of the vice president, his cabinet and two-thirds of Congress, he can repeat the process to regain his powers. 

Has the 25th amendment ever been invoked?

Section 3 has been used three times. President Ronald Reagan invoked this provision once, and George W. Bush did it twice. Each time it was because the president was receiving general anesthesia for surgery. Interestingly, it wasn't invoked when Reagan was shot in 1981.

What happens if Vice President Mike Pence gets sick?

Things could get messier if both Trump and Pence were to become seriously ill at the same time. The 25th Amendment only spells out how presidential powers are transferred if the president is unable to fulfill his duties and there's a vice president who can take over. 

To be clear, there's no indication that Pence is infected with COVID. It was reported Friday that he and his wife had tested negative for the virus. And it's also been reported that he's not believed to have been exposed to anyone who has tested positive for the virus. 

But if he were to get sick while Trump is incapacitated, the Presidential Succession Act of 1947 would be what's used to determine who's next in line to act as president. Under this statute, that would be House Speaker Nancy Pelosi. But there's no clear process for such a transfer of power. 

What if Pelosi and Pence disagree about whether he's capable of fulfilling the duties of the presidency? 

There's no plan outlined in the Constitution for this scenario. So this is where things could get very messy from a legal standpoint, with two people claiming the right to execute presidential powers. 

What would the Democrat's new bill in Congress do? 

So Section 4 has generally been interpreted to allow the vice president and the majority of the president's cabinet to decide whether he or she is incapacitated. But it actually doesn't have to be the cabinet that makes that call. It also says that the vice president can work with some "other body as Congress may by law provide" to determine if the president is unable to perform his duties. 

Democrats say this bill will create a bipartisan commission made up of members of each party to make that determination. Pelosi has insisted that the legislation is not intended to affect Trump, but is rather a solution to apply to future presidents. But she argued that his recent health challenges underscore the need for such a process.

Of course, to become law, the legislation would have to be passed by the Senate, which is controlled by Republicans, and it would have to be signed by the president. So there's almost no chance it will become law.