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Often cited during Trump presidency, 25th Amendment reemerges with president’s coronavirus diagnosis

The 25th Amendment gives Trump's Cabinet and Vice President Mike Pence the authority to install the vice president as acting president, though that provision has never been used.
The 25th Amendment gives Trump's Cabinet and Vice President Mike Pence the authority to install the vice president as acting president, though that provision has never been used.Tom Brenner/NYT

It’s the constitutional amendment invoked during the resignations of former vice president Spiro Agnew and president Richard Nixon during the 1970s, and twice by former president George W. Bush during two colonoscopies.

Now, following Friday’s announcement that President Trump and his wife, Melania, tested positive for COVID-19, the nation faces the possibility of seeing the 25th Amendment — which outlines what happens to the presidency if the president dies, resigns, or cannot perform their duties — invoked for the first time since 2007.

“You don’t want there to ever be a time when there’s not a president,” said Jeremy Paul, a professor and former dean at Northeastern University School of Law.

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On Friday evening, the White House said Trump would be admitted to the Walter Reed National Military Medical Center and remain for a few days on the advice of doctors. The visit is precautionary, the White House said, and Trump will work from the hospital’s presidential suite, which is equipped to allow him to continue his official duties. But should that change, under the 25th Amendment, Trump could temporarily turn power over to the vice president, who would become acting president. Legal experts said Trump could pursue this option if his condition worsens, prompting doctors to sedate him and put him on a ventilator.

If Trump’s condition worsened before he had a chance to delegate power, another provision of the 25th Amendment gives his Cabinet and Pence the authority to install the vice president as acting president, though that provision has never been used.

“That would be appropriate if the president suddenly became incapacitated and remained alive,” said Jack M. Beermann, a professor at Boston University School of Law.

Earlier Friday, the White House said Trump was “fatigued” and had been injected with an experimental antibody drug combination for the virus, which has killed more than 205,000 Americans.

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His wife, Melania, wrote on Twitter that she had “mild symptoms but overall feeling good.” Vice President Mike Pence tested negative for the virus on Friday morning and “remains in good health,” his spokesman said.

Trump’s challenger, former vice president Joe Biden, a Democrat who shared the debate stage with the president on Tuesday, and his wife, Jill, have both tested negative for the coronavirus, according to his campaign. However, health experts have said coronavirus tests produce more accurate results a few days after patients have been infected or developed symptoms.

Prior to Trump’s COVID-19 diagnosis, the 25th Amendment figured prominently into public debate about Trump’s fitness for office.

The states ratified the 25th Amendment in 1967, 126 years after constitutional confusion over succession began when William Henry Harrison became the first commander-in-chief to die in office. Seven more presidents died in office before the amendment was certified, including James Garfield who lived for 78 days after being struck by an assassin’s bullet in 1881.

Presidents Woodrow Wilson and Dwight Eisenhower experienced debilitating illnesses while in the White House, but lived out their terms and never relinquished power, according to a 2018 article by Joel K. Goldstein, an emeritus professor at Saint Louis University School of Law.

Wilson had a stroke in 1919; Eisenhower had a heart attack in 1955, surgery in 1956, and a stroke in 1957, Goldstein wrote.

“There was just really no mechanism for handling succession,” said Renée M. Landers, a professor at Suffolk University Law School. “Most of that time, they were just winging it.”

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Kent Greenfield, a professor at Boston College Law School, said the Constitution is now prepared to handle Trump’s illness, and the election and Inauguration Day as well.

If Trump were to become incapacitated before Election Day, the Republican National Committee has the authority to name another candidate. But if Trump emerges disabled from his diagnosis but still wins a second term, the landscape becomes more complex, Greenfield said.

“That’s when the constitutional puzzles will kick in,” he said.

This story has been updated to put a quote from Jack M. Beermann, a Boston University School of Law professor, in the correct context.

Material from the Associated Press was used in this report.









Laura Crimaldi can be reached at laura.crimaldi@globe.com. Follow her on Twitter @lauracrimaldi.