What continuity of governance looks like if the president is incapacitated

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One thing you can say for sure about the next president. He’ll be old. Donald Trump is 74, Joe Biden 77. Trump was hospitalized with coronavirus. He eats Big Macs. Biden had brain surgery years ago. So it’s reasonable to think about continuity of governance when the top dog is incapacitated. For some perspective, the deputy director of the Center for Effective Public Management at the Brookings, John Hudak, joined Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: John, good to have you back.

John Hudak: Tom, it’s good to be back.

Tom Temin: And I guess people are really thinking about this, because we did have the president go to Walter Reed there for a few days. And frankly, it could have gone any one of a lot of ways — it turned out fairly well, I guess, in terms of his personal health. And Joe Biden has had health issues over the years, I guess nobody gets to 77 without some of them. So let’s talk about the succession question. That’s something that has not really been static, since the founding of the republic has it?

John Hudak: Yeah, that’s right. Really, the only part of the succession process that has been static is that the Vice President takes over for the President when he dies, resigns, or is impeached or removed or in cases of incapacity. After the Vice President however, Congress has produced a variety of Presidential Succession Acts over the years. Now they are producing one since the 1940s, that is compliant with the Constitution. And that lays out what happens next, essentially, if the President and the Vice President are both unable to perform the job of the office, or if there is a vacancy in one of those offices, and something happens to the other.

Tom Temin: It was Truman that went along with the planned for the Speaker of the House to be next in line, I believe, because he felt it should be someone elected, even if it’s the other party rather than someone appointed.

John Hudak: Yeah, the movement from the vice president to the Speaker of the House and the President Pro Tempore of the Senate before the cabinet is actually fairly controversial. So there are some legal scholars who suggest that it is unconstitutional to have legislators, members of the legislative branch to be part of the line of succession in the executive branch. Of course, it’s something that’s never been tested, I would imagine that in a period of crisis, that courts would be fairly flexible as to their interpretation of this. The Constitution does lay out that Congress has the ability to draw up these types of succession plans. The question about whether there are prohibitions on legislators serving in an acting capacity in the executive branch is a question. Now we have this happening in a state houses, in state governments. I think the most famous example of this in modern times is the state of New Jersey, where before New Jersey had a lieutenant governor, which was only about eight years ago that that office was established, the President of the Senate would become Acting Governor for periods of time, but still retain that Senate seat and be able to go back to the Senate once that term was over.

Tom Temin: Yeah, and I guess that does create all sorts of questions on the political front as to can they enact their own legislation with signature? I guess maybe the tougher question then is if the President is incapacitated — who judges that? And can everyone around the president except what happens next? I recall when President Reagan was shot, and the famous Al Haig quote, I’m in charge here, or I’m in control here, whatever he said, I don’t think he meant that I’m next in line, but just the things were okay at the White House and functioning properly, but it was interpreted in all kinds of odd ways. So how does that all work?

John Hudak: Well, the criticism of what happened after President Reagan was shot was well founded. This was a White House and a government that was completely unaware or not ready to deal with what were clear constitutional provisions. This was a failure of Al Haig. It was a failure of Vice President Bush, it was a failure of the Justice Department, etc. There are clear processes when something like that happens to invoke the 25th amendment and for the Vice President to serve as acting president. That the Reagan administration did not do that was actually a very serious national security threat and governance challenge. But there are really three categories of say monitors that can determine whether a president is incapacitated. The first is the President, if the President foresees that he’s going to be incapacitated, whether it is because of a planned medical procedure or if he’s experiencing some sort of health crisis and understands that his condition is deteriorating, under Section three of the 25th amendment, he can transfer the powers temporarily to the Vice President who serves as acting president. In other circumstances where a president’s condition deteriorates too quickly for the President to invoke that or if the President is just unwilling to invoke that, section four of the 25th amendment provides two other categories by which there can be a declaration of presidential incapacity. The first is the Vice President and a majority of the cabinet can determine that. If they do so they notify such to the Congress, and that power is transferred then to the Vice President. The alternative is for Congress to set up a commission to judge presidential incapacity, in which case a majority of that commission, plus the Vice President, has to determine in capacity and again, power is then transferred to the Vice President serves as acting president.

Tom Temin: Now that commission has been proposed again recently, but it has the flavor of being a political proposal, because, well, we’ve just had an unconventional presidency, you might say, and an unconventional reaction to it. That’s as far as I’ll go on that one, right. Not taking sides here. But we don’t have that type of commission now — have we ever had it?

John Hudak: I agree with you that this is something that seems like a political stunt. Speaker Pelosi and Congressman Raskin from Maryland have proposed this legislative commission that would judge presidential incapacity. The timing of it is suspect, I would say. It also requires passing the House, the Senate, and either getting a presidential signature or overriding a presidential veto, which I think has no chance in hell of happening. Now, that said, I think there is probably a value to having that commission, at least at the ready, or having a commission like that established by law. So if it needed to be activated, the Congress could then activate it. The hope, of course, is that the cabinet and the Vice President would act in a responsible way if it ever came to it. But in the case of that not being the case, it’s important to remember, the Vice President can’t be fired, but every member of the cabinet can be fired on the spot. And that creates a real challenge. If the president were concerned that the cabinet were going to invoke section for the 25th, that could become a complicating factor quite quickly. And so if we strip away everything that’s going on in our government right now, which is of course, not how politics works. But if you did that, I think there’s some real value to having this commission established. Like I said, the timing of it, not the best. But from an institutional perspective, it’s probably important.

Tom Temin: And I guess there’s some difference between, say, if we have a relatively young President — Barack Obama, a Bill Clinton, the George W. Bush, they were in the prime of their life, or even a little younger, in some cases. Here you’ve got people that will be in their late 70s, or even beyond 80, by the time Joe Biden would finish the first term. And it might be a little more subtle. That is to say, a younger person is likely to be incapacitated, suddenly, an assassination attempt, surgery that might be needed and planned — whereas say senility or dementia would set in with someone older, that can be long time incoming and signs can be very subtle. So that would be difficult for a commission to decide, well now I think the time

John Hudak: Yeah. I think we shouldn’t think about this in terms of the age and health of the President. I mean, I agree with what you’re saying. But ultimately, we need to think about this as both an institutional process and a worst case scenario process. And yeah, it is possible for younger presidents to become incapacitated quite quickly, for that decline to happen among older presidents in a different way. But those things can happen to younger presidents as well. And when we think about younger presidents, we’re thinking about a 50 year old, we’re not thinking about a 15 year old. Early onset dementia can happen to someone in their 40s or 50s. It’s uncommon, but it can certainly happen. I think, a great example of these sorts of scenarios actually is Mr. Biden’s son, someone who is stricken suddenly with brain cancer and was having very serious issues with seizures and other symptoms that if he were president, or if he were a state governor, he was actually very strongly expected to become the next governor of Delaware — there would have been very serious questions about Beau Biden’s ability in certain moments to be able to carry out those duties. And so again, I think we need to think about this as what can possibly happen to a President or to a Vice President, etc. and then build our institutions around that, and not necessarily think about the moment where in or even the likelihood of what could happen.

Tom Temin: So maybe the best political solution to establishing something like this is to establish it at a fixed date in the future, when no one can predict the election after whoever’s elected in 2024.

John Hudak: Yeah, and we have some experience with that in our government. So the provisions of the Constitution that would affect certain people in certain moments, right. So when term limits were added to the presidency, for instance, the person who was exempt from those term limits was the sitting president in order to sort of make sure that there’s no desire to affect the person, as you said, the personality in that moment. And so we have experience with doing that, and I think,it’s important for Speaker Pelosi to revisit this issue. If Joe Biden is elected in November, I think the lame duck session would actually be a great time to establish a commission like this and make it active or make it activate on January 20 at noon. Again, so maybe it gets President Trump’s signature. Maybe it gets the Republican Senate to go along. But it’s an institution that’s probably important to have in their back pocket and like you said, to be able to remove Trump from that equation, whether it is because he’s lost in November or whether it’s because he’s term limited after his second term after he’s reelected in November — that’s an effective political strategy to go about.

Tom Temin: John Hudak is deputy director for the Center for Effective Public Management at Brookings. Thanks so much for joining me.

John Hudak: Thanks for having me.

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