Blogger Candidate Forum: It Gets Murky

 

wsj.com

Hello Everyone:

Blogger was planning to tap in today but the dumpster fire of a week the Trump campaign was having meant The Candidate Forum felt the need to tap in.  How bad of a week did the Trump campaign have?  Terrible, awful, capped off by a positive COVID-19 result.  The kind of week that can do substantial damage to political campaign.  It was the type of week where reporters, pundits, and administration officials openly considered the 25th Amendment.  Before we talk about that amendment, The Candidate Forum has a question for you.  Have you made a plan to vote?

If you have made your plan, good for you.  If you have not made your plan time to put your skates on and go to iwillvote.org for all the latest information.  Thank you.  Now then, shall we talk about what the incumbent president's illness mean to the campaign.

It was a terrible, no good kind of week.  The incumbent president Mr. Donald Trump's (R-NY) over compensated for lack of preparation for his first debate with Democratic nominee former Vice President Joe Biden (D-DE) by, well, rudeness, refusing to condemn white supremacist groups, and not agreeing to accept the results of the election if the Gentleman from Delaware prevails.  The week got worse when he doubled down on his refusal to condemn white supremacist groups, capped off by being hospitalized with the COVID-19 virus.  As The Candidate Forum said, a terrible no good week.  Let us focus on COVID-19.

The president introducing Judge Amy Coney Barrett

newyorker.com 

We now know that the Rose Garden ceremony to introduce Judge Amy Coney Barrett as the nominee to fill the seat held by late-Associate Justice Ruth Bader Ginsburg was a super spreader event.  The ceremony followed Trump-style disease prevention protocols: No social distancing and no masks.  We know that Hope Hicks, an aide to senior advisor and First Son-in-Law Jared Kushner, tested positive for the virus and the news was kept quiet by senior staff.  Bloomberg media reported "...after news of Hick's diagnosis, White House staff began planning how to handle campaigning and presidential duties in a scenario where President Trump tests positive for the virus.  Hours, later, the president and first lady Melania Trump announced that they tested positive for the virus" (thehill.com; Oct. 2, 2020; date accessed Oct. 5, 2020).  Bloomberg also reported "Aides close to the president said they sensed he was not feeling well starting Wednesday,..." (Ibid).  

Friday evening, the incumbent president was transported to Walter Reed Hospital where he was treated and, inexplicably, released this afternoon.  News report about the incumbent president's health has been confusing and conflicting but it had many people wondering if the incumbent president would still be able to carry out his constitutional duties, let alone finish the campaign.  This where discussions about the 25th Amendment come in.

pinterest.com

The 25th Amendment, approved in 1967, tries to answer a series of question raised by the Constitution's treatment of what happens if the president and vice president vacate their offices.  For our purposes, we will focus on the president.

Article II, Section 1, Clause 6, of the Constitution states that in

...case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President... (constitutioncenter.org; Oct. 5, 2020)

The line of succession is clear: President then vice president but what "devolves" means was not clear.  Does it mean the powers and duties of said office or just the office.  The first time Article II went into action came in 1841 when the ninth President of the United States William Henry Harrison died after a little over month in office.  His Vice President John Tyler insisted that he was next in line.  Although Congress accepted this result, it was still a matter of dispute.

Section 3 of the 25th Amendment answers the question of how the president would transfer power should he become unable to discharge the duties of office.  It reads,

Whenever the President transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmit to them a written declaration to the contrary, such power and duties shall be discharged by the Vice President as Acting President... (Ibid)

Since the adoption of this amendment, the president has transferred his power to his vice president only a few times, the most recent was during the George W. Bush administration, when the president underwent a routine colonoscopy.  However, contemporary rules governing the transfer of power are anything but clear cut, with sweeping national security and governance implications (politico.com; Oct. 3, 2020; date accessed Oct. 5, 2020).

The incumbent president appearing to work
cnn.com

The incumbent president has long portrayed himself as a person in vigorous health.  So keen to hew to this image that he has steadfastly remained secretive about the true nature of his health.  The mask of good health began to show cracks early Friday morning, when news of the his positive COVID results began to circulate in the media.  Under normal circumstances, the White House Counsel would began drafting a letter in case of transfer of power (Ibid).  Even in table exercises, the transfer of power was, to a certain extent, anticipated and had a definite timeline.  "If Trump becomes incapacitated due to complications from the coronavirus, it could be for an unknown or an extended time period.  And, should Vice President Mike Pence also fall ill, the 25th Amendment does not outline who is next in the chain of command" (Ibid).

Technically, the Presidential Succession Act states that the next person in the chain of command is the Speaker of the House of Representatives.  However, "There is nothing in the law or the Constitution,..., that dictates who would actually decide to invoke the Presidential Succession Act if both the president and vice president become incapacitated" (Ibid).  This is where gets murky and with the election less than a month out, it gets even murkier.  Allow The Candidate Forum to speculate what could possibly happen.

Mike Pence and Donald Trump in 2016
abcnews.go.com

What could possibly happen if the incumbent president's health takes a turn for the worse, he is forced to invoke the 25th Amendment, and Vice President Mike Pence (R-IN) moves to the top of the ticket.  Here is where it get really messy, really fast.

The first thing the Republican National Committee has to do is produce a new nominee.  Interestingly, VPOTUS Pence would not be the automatic choice.  The "...process would involve Chairwoman Ronna McDaniel and the 168 national members--three from each state and territory" (nytimes.com; Oct. 2, 2020; date accessed Oct.5, 2020).  However, since voting has begun in many states, naming a new nominee and printing new ballots in time for Election Day, November 3rd.  Thus it would be up to the individual states to decide how to proceed, and most have no clear cut rules for this situation (Ibid).

Richard L. Hasen, a law professor at the University of California, Irvine, writes in his Election Law blog,

It would be a question of what each state's law says or doesn't say about what happens in this eventuality, and many states laws are just silent on this possibility,... So there may be questions about what to do (nytimes.com; Oct. 2, 2020).

It becomes even more complicated if the incumbent president wins is unable to serve.  Some states bind their elector to vote for whoever wins the state, however even states with faithless elector laws have no provision for what to do if the candidate dies or is unable to serve.  In this case, it may be up to Congress or the court to decide who wins.