Originally published on October 2nd, 2020
In presidential campaigns in recent history, there has been an ‘October Surprise’, an event or revelation (sometimes deliberately timed) that shocks the masses and can decisively swing the polls days before election day. In 2016 there were Hillary’s emails and Trump’s Hollywood Access Tape; in 2012 Hurricane Sandy ravaged the Eastern Seaboard; in 2008 the financial crisis had kicked off and there was a then-record rise in unemployment. The nature of an October Surprise allows little time for the subject to respond and mitigate the damage, which has led it to be used as a weapon by campaigns, to capitalise on the public shock. However, in the most anticipated, unprecedented, toxic election in history, with the country so polarised, surely nothing could actually shock the public at this point and influence the outcome of the election?
President Trump announced that he and the First Lady both tested positive for COVID-19 early in the morning on the 2nd of October, and that they started quarantining immediately. It currently seems that he was infected by Hope Hicks, one of his PR advisors. It was announced that Hicks tested positive for the virus earlier in the night, late on October 1st. She had symptoms on the 30th of September (Ballhaus and Lucey, 2020) and it’s likely that whilst asymptomatic she was still able to infect others on the 29th of September, where she was at the first presidential debate (Santucci and Faulders, 2020) and did not wear a mask, along with many of the team travelling with the president. Both Vice-President Pence and Vice-President Biden were in relatively close contact with the President on Tuesday (although they tested negatively later on October 2nd), without wearing masks. Crucially, however, if Pence contracts the virus shortly and needs to self-isolate concurrently with Trump, then there could be a constitutional crisis as both could not be reasonably expected to be able to discharge their duties as president or acting president.
The 25th Amendment to the Constitution was proposed and ratified after President Kennedy was assassinated, to codify a process by which the Vice-President assumes the presidency and how another Vice-President can be appointed by Congress. Vice-presidents have been appointed this way twice, with Gerald Ford appointed Vice-President after Spiro Agnew resigned, and for Nelson Rockefeller appointed Vice-President after Ford became President following the resignation of Richard Nixon. Along with this, George H. W. Bush and Dick Cheney both became acting president, under the 25th Amendment, whilst Presidents Reagan and George W. Bush both underwent surgery with general anaesthesia. However, in all of these situations, at least one of the President and the Vice-President were able to undertake the duties of the presidency. If both Trump and Pence become incapacitated at the same time, which one could already make the case for given that Trump is currently quarantining and that it’s likely Pence will soon, we will be in uncharted constitutional territory. To find the answer to the question of who accedes after both the President and Vice-President are incapacitated, one must look through the 1947 Presidential Succession Act, passed after President Roosevelt died in his fourth term in office. In the event that both the President and Vice-President become incapacitated, Congress wanted an Acting president that was elected, rather than appointed, and they chose the Speaker of the House of Representatives to be second in line. The current Speaker of the House is Nancy Pelosi, a Democrat, who would become president if both Trump and Pence are incapacitated. However, yet another spanner gets thrown in the works, not because of a clause in the constitution or a piece of legislation, but because of the Political Climate.
The Republican Executive and Republican controlled Senate are trying to jam their Judicial nominee through on to the Supreme Court so there would be a 6-3 conservative swing on the highest court in the land. For Republican politicians, stacking the Court in their favour would be an enormous win and likely spell the end of significant parts of Roe v. Wade and the Affordable Care Act, which has been at the forefront of Party policy for years. If Nancy Pelosi were appointed Acting President, she would have the ability to force Congress into recess so that confirmation hearings for Judge Amy Coney Barrett would have to be postponed until either the President or Vice-President are able to proceed with their duties. It’s conceivable that even while being unable to discharge the duties of the president, the President or Vice-President might refuse to sign a letter of transition that would make Pelosi Acting President, and that, under the 25th amendment, the Senate would not vote to temporarily transfer the presidential powers to Pelosi, as there is likely needed a majority vote in both branches of Congress, under the 25th amendment. The United States could potentially be left without an Executive branch of government at all, due to how important it is to the Republicans that they get another conservative Justice on the Supreme Court. It’s currently looking likely that Democrats will emerge from the election with control of the Executive Branch, the Senate and the House of Representatives, and if the Republicans tried to jam Coney Barrett through the Senate in between the election and January 20th, it would be incredibly controversial and brazenly illegitimate
Ideally none of this happens, Pence can assume the presidency if, God forbid, Trump should become seriously ill. However, the mismanagement of a public health crisis and through partisan bickering, we have been presented with a conceivable situation where the US is left without an executive branch at all. That we have arrived here would have been unthinkable only a year ago; this requires extensive bipartisan cooperation so that such a situation can be averted again, because this could have been prevented from happening at so many points, mainly through more federal intervention towards handling the pandemic more seriously. There is a gap in the constitution that would’ve seemed unnecessary to fill when the 25th amendment was passed, but now that unthinkable possibility is staring all of us in the face and must be remedied so the Executive Branch is never left vacant.
- Ballhaus, R. and Lucey, C., 2020. President Trump And First Lady Melania Test Positive For The Coronavirus. [online] WSJ. Available at: <https://www.wsj.com/articles/hope-hicks-top-trump-adviser-said-to-test-positive-for-coronavirus-11601602377> [Accessed 2 October 2020].
- Santucci, J. and Faulders, K., 2020. Hope Hicks, One Of Trump’s Closest Advisers, Tests Positive For Coronavirus, President To Quarantine. [online] ABC News. Available at: <https://abcnews.go.com/Politics/hope-hicks-president-trumps-closest-advisers-tests-positive/story?id=73377363> [Accessed 2 October 2020].