Why Mike Pence didn't become US acting president after Trump's COVID-19 infection

Willard Cheng , ABS-CBN News

Posted at Oct 07 2020 10:42 PM

Why Mike Pence didn't become US acting president after Trump's COVID-19 infection 1
US Vice President Mike Pence talks to the media before departing for travel to the vice presidential debate in Salt Lake City, Utah, at Joint Base Andrews, Maryland, US October 5, 2020. Erin Scott, Reuters/File

MANILA - US President Donald Trump did not see the need to temporarily transfer power to Vice President Mike Pence, when he caught the coronavirus and even while he was hospitalized at Walter Reed National Military Medical Center.

Section 3 of the US Constitution’s 25th Amendment allows a sitting president to declare in writing his inability to discharge his duties. The vice president becomes acting president while the president remains in office. The president can regain his powers by declaring he is ready to discharge the powers and duties of his office.

In Trump’s case, the White House released on Oct. 3 photos of him at work while at Walter Reed’s presidential suite. He even went on a drive-by outside the hospital to wave at supporters.

US-based law professor Joel Goldstein of the Saint Louis University School of Law explains it is the “custom” that the sitting president transfers power to the vice president if the chief executive is being subjected to general anesthesia.

“The custom has developed that if a president is subject to general anesthesia, and the president knows that this is going to happen, that he or she will transfer power under section three of the 25th amendment,” Goldstein said in a briefing with selected journalists participating in the virtual reporting tour on the US Elections organized by the US Department of State’s Foreign Press Centers.

There were only three instances where this happened.

In 1985, Vice President George H.W. Bush became acting president for eight hours when President Ronald Reagan underwent a colonoscopy under general anesthesia to remove a cancerous growth.

In 2002 and 2007, Vice President Dick Cheney became acting president for a few hours when President George W. Bush underwent colonoscopy under general anesthesia on both occasions.

“There are at least three other instances where presidents thought they might have to undergo general anesthesia, and they were prepared to transfer power to the vice president, but then it turned out that they didn't need a general, and so they didn’t,” said Goldstein, who has authored two books on the vice presidency.

He pointed out that there can be other conditions that may render the president unable to discharge the powers and duties of the office.

“But the fact that the president can't do some things, doesn't mean that he or she is unable to discharge the powers and duties of the office. Presidents, like the rest of us, get sick and may not be able to give a speech or take an overseas trip, and that doesn't necessarily mean that they're unable to discharge the powers and duties of the office,” Goldstein said.

Section 4 of the 25th Amendment allows the vice president and a majority of the Cabinet, by informing Congress, to strip the president of powers if he is unwilling or unable to declare his or her own inability to discharge the powers and duties of the presidency. The vice president then becomes acting president. This section has not been invoked in the past.

While the decision-making is largely placed within the executive branch, the American people and the press have a role in assessing the situation.

“Ultimately it becomes a decision that has to be assessed politically if people believe that the president is making a decision improperly, the remedy in our democracy is through democratic means through public disagreement and expression under the First Amendment and otherwise,” Goldstein said.

“In terms of whose responsibility it is, I think that's part of the function in any administration of a free press to be asking questions. It's part of the responsibility of Congress to be exercising a check and balance on the executive, to be raising issues under any administration where you have a situation where there's reason to think that a president is disabled.”