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Until Trump recovers, Pence should be in charge

The 25th Amendment exists for situations such as this.

President Trump drives past supporters gathered outside Walter Reed National Military Medical Center in Bethesda, Md., on Sunday. (Anthony Peltier/AP)
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We hope and pray that President Trump recovers quickly from the coronavirus that has infected him and millions of Americans. While he does, Americans need leadership, not a shifting story: The nation shouldn’t have to sit by while Trump, his staff and his doctors offer different, and sometimes contradictory, accounts of the state of the president’s health. According to reports, Trump’s blood oxygen levels have dropped more than once since Friday; yet he somehow thought it was a good idea Sunday evening to ride around the perimeter of Walter Reed National Military Medical Center to wave at supporters.

Trump’s hospitalization, alone, is cause for concern. And now we know he’s taking a steroid, dexamethasone, the known side effects of which could limit anyone’s capacity to effectively carry out the responsibilities of the presidency, as leading physicians such as Robert Wachter, chair of the University of California at San Francisco’s Department of Medicine, have said:

Indeed, under these circumstances, it’s time for the White House to turn away from its choice to obscure the president’s health status and embrace our Constitution’s architecture — one designed for moments such as this, where the nation’s health takes precedence over any one man’s health: Trump should follow the process outlined in the 25th Amendment and temporarily cede the powers of the presidency.

Until Trump recovers, Vice President Pence should be in charge.

Last week, from the moment when we learned that Trump “continued on with a full schedule of events” despite exposure to close aide Hope Hicks, who tested positive for the coronavirus, to the moment, in the middle of the night, when we learned Trump himself had tested positive, the official story has shifted multiple times. The White House has presented conflicting accounts about his health and the progress of his case — with consequences for his fundamental ability to govern in the short term. This is more than just incompetent messaging; it has constitutional significance. Section 3 of the 25th Amendment specifies:

“Whenever the President transmits 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 transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”

This provision makes eminent sense. You wouldn’t ask your accountant or your airline pilot to perform their duties under these conditions — suffering from the coronavirus with bouts of low oxygen and taking experimental medication — particularly when there is a designated standby person at hand. The president shouldn’t be an exception.

Trump's campaign can be put on hold. Election Day can't.

Recent presidents haven’t shied away from using this constitutional mechanism. In 1985, before undergoing surgery, President Ronald Reagan wrote a letter briefly handing power to Vice President George H.W. Bush. Similarly, in 2007, President George W. Bush invoked the 25th Amendment, temporarily transferring his authority to Vice President Richard B. Cheney while Bush underwent a colonoscopy. Rather than worrying about somehow losing power, they showed concern for the nation and the Constitution they’d sworn an oath to protect and defend.

Today, there’s no excuse for Trump failing to do the same. In 2016, he chose Pence as his running mate, and the American people elected Pence, too, including on the knowledge he might one day need to play this very role. It would be enough that the president is grappling with a vicious illness that tends to hit particularly hard those of his age, 74, but there’s more: Trump is receiving treatment for low oxygen levels. You don’t need to be a doctor to know the effects of low oxygen: Oxygen is fuel for the brain, and without a full supply, the brain doesn’t function properly — which can lead to poor decision-making. And that’s on top of the medication Trump is taking, including a steroid with known side effects that can include “agitation,” “depression,” “mood changes” and “trouble thinking.” The White House’s ham-handed release of a video that appeared, to some, to have been altered, and a photo that appeared, to others, to be of Trump signing a blank page isn’t nearly enough to reassure Americans that he is fit to serve right now.

Both of us have been critical of Trump’s decisions in the past, which tend to put his own interests ahead of those of the public he is supposed to serve. But whatever anyone thinks of those decisions, this one eclipses them all in its selfishness and poor judgment — there should be no doubt about the capacity of the man who holds the nuclear launch codes, yet that doubt is unavoidable right now.

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His personal physician’s statement Sunday that Trump could be discharged from the hospital “as early as tomorrow,” appears designed to forestall calls for this change in power. But that’s wrong. The 25th Amendment provision here is only about a temporary transfer of power, and if he quickly recovers, Trump of course can reassume duties, just as Reagan and Bush did. Hope for tomorrow doesn’t excuse failing to do what is right today.

The Constitution also has a plan in the event that both Trump and Pence are incapacitated: Article II, Section 1 provides that Congress has the power to define the executive branch’s chain of succession, which Congress did with the Presidential Succession Act of 1947. That law, with its subsequent amendments, makes clear that, after the vice president, the House speaker, currently Rep. Nancy Pelosi (D-Calif.), is next in line, then the president pro tempore of the Senate, currently Charles E. Grassley (R-Iowa), then the various members of the president’s Cabinet, starting with the secretary of state. But at least one pro-Trump constitutional analyst has already tried to argued that the law is unconstitutional with the explicit hope of setting up Secretary of State Mike Pompeo as next in line after Pence, a view that is unlikely to prevail.

For generations, Americans have voted against the backdrop of the 1947 law, with the understanding every two years — as every House seat is up for a vote — that giving the House to one political party or the other means making that party’s lead in the House two heartbeats away from the presidency. Trying, all of a sudden, to claim a constitutional defect would undermine the settled expectations of voters. It would, in a sense, nullify aspects of their votes. Against those entrenched expectations, it’s ludicrous to think that federal courts would shock the nation by declaring unconstitutional such a long-standing law. At most, a court might declare the issue to be the ultimate “political question,” not subject to resolution by the courts.

Stepping back, it’s hard to view this year as anything but time squandered by Trump as a deadly virus ravaged the country he swore to protect. He didn’t protect us, and he didn’t protect himself, because he refused to accept basic science and, frankly, to apply common sense. His judgment has now left him medically infirm. The Constitution knows what to do with a president in that condition: He must put the country first, not his own sense of ego or reelection prospects, and let the vice president run the executive branch, including protecting the country from adversaries foreign and domestic who might seek to capitalize on this worrisome moment. It’s not too late for Trump to show better judgment by stepping aside until independent physicians certify a full recovery. Our Constitution enables it; and our nation deserves it.