Trump COVID-19 test raises questions about contingency plans

President Trump’s positive coronavirus test is raising serious questions about what the administration would do if he’s unable to carry out his official duties, and what impact a worsening illness could have on an election that’s just a month away.

Trump is expected to spend the next few days at Walter Reed National Military Medical Center, though the White House has insisted that the president is experiencing mild symptoms after he and first lady Melania Trump tested positive for COVID-19 late Thursday. Experts say that such a situation would normally trigger White House plans for a potential transfer of authorities should the president become gravely ill.

“Normally, what we would expect is a whole lot of communications with the vice president and plans for decision making authority to transfer to him in the event that the president is incapacitated,” said William Howell, a political scientist and professor at the University of Chicago Harris School of Public Policy.

After announcing Trump would be going to Walter Reed, a White House spokesman said there were no plans to transfer power to Vice President Pence.

A constitutional amendment has been in place since 1967 to address the question of what happens when a president is unable to discharge their duties. The electoral implications, however, are less clear cut.

“Of all the nightmare scenarios, a presidential candidate dying or becoming incapacitated suddenly raises some really knotty problems,” said Rick Hasen, an election law expert and law professor at the University of California Irvine.

Trump, who is 74 years old and overweight, falls into the high-risk category for the coronavirus, which has killed more than 208,000 people in the U.S. and 1 million worldwide.

Trump tested positive for the virus after Hope Hicks, one of his closest aides who traveled with him on Air Force One twice this week, contracted coronavirus. Other White House officials, including Vice President Pence and White House chief of staff Mark Meadows, have since tested negative.

The White House has acknowledged the possibility of further cases and says it’s implementing plans to ensure the executive branch continues to function.

“I fully expect that, as this virus continues to go on, other people in the White House will certainly have a positive test result, and we’ve got the mitigation plan in place to make sure the government not only continues to move forward but the work of the American people continues to move forward,” Meadows told reporters Friday.

The primary mechanism for ensuring continuity of government if a sitting president is rendered unable to perform their duties while in office is contained in the 25th Amendment to the Constitution.

The amendment was prompted by President John F. Kennedy’s assassination in 1963. Kennedy’s death raised concerns about the inadequacy of the nation’s contingency planning.

“These proposals were influenced by the sense at that time that, if Kennedy had lived, the country would have had to deal with the problem of presidential inability in a most tragic setting,” wrote John D. Feerick, a law professor at Fordham University and scholar of the 25th Amendment.

The amendment lays out a roadmap for succession if the president — or vice president — were unable to discharge their duties. Notably, it does not require the disclosure of a president’s worsening condition, so it’s possible the constitutional mechanism could be set in motion without public notice.

One provision of the amendment allows the president, on their own initiative, to transfer power to the vice president on a temporary basis.

That happened twice during the presidency of George W. Bush, who briefly transferred authority to Vice President Dick Cheney while he underwent colonoscopy procedures. Bush resumed his powers shortly thereafter.

But the amendment contains a provision that is sometimes referred to as the “involuntary removal mechanism.” It authorizes the vice president and a majority of Cabinet members to declare a president “unable to discharge the powers and duties of his office.”

Should both the president and vice president have the “inability” to perform their duties, a federal law called the Presidential Succession Act states that the Speaker of the House — currently Nancy Pelosi (D-Calif.) — would take over as president and resign her position. The law does not specify how it is determined that those individuals are unable to perform their duties or who makes the determination, legal experts say.

The White House says that Trump remains in good spirits and traveled to Walter Reed out of “an abundance of caution.”

“President Trump remains in good spirits, has mild symptoms, and has been working throughout the day. Out of an abundance of caution, and at the recommendation of his physician and medical experts, the President will be working from the presidential offices at Walter Reed for the next few days. President Trump appreciates the outpouring of support for both he and the First Lady,” White House press secretary Kayleigh McEnany said in a statement. 

Trump was forced to cancel a fundraiser in Washington, D.C., and a campaign rally in Sanford, Fla., scheduled for Friday and will put off all future in-person campaign events for the foreseeable future. He was scheduled to take part in a call with governors about protecting seniors from the virus on Friday, but Vice President Mike Pence, who has since tested negative for the virus, took his place. 

Should Trump fall gravely ill and trigger the invocation of the 25th amendment, it could also have repercussions for the looming presidential election. 

The Republican National Committee has the power to select a new GOP nominee should the current nominee become incapacitated. However, election experts say that Trump’s name would still likely appear on the ballot because of the current proximity to the election.

“The difficulty is that if this were to happen, it would not happen presumably for another few weeks still and it’s unlikely states would be able to change their ballots to have that new nominee listed as the head of the Republican Party ticket,” said Richard Pildes, an election law expert and New York University law professor. 

“What would happen is voters who support the Republican Party would vote for Trump on their ballots and technically what you’re doing is voting for Trump electors,” Pildes added. 

Such a situation would be unprecedented.

“We’ve been very fortunate that we have never had a major party nominee for president become incapacitated after the convention let alone on the eve of the election, and certainly not after the election before the inauguration,” Pildes said.

Updated at 7:01 p.m.