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When Second Comes First

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eye on the news

When Second Comes First

With two elderly candidates for the world’s biggest job, voters must consider their presumptive replacements. October 27, 2020
Politics and law

In 2008, many who had expressed support for the presidential candidacy of John McCain changed their minds with the announcement of the governor of Alaska, Sarah Palin, as his running mate. They reasoned that McCain, 72, was too old, with a history of cancer, and that Palin was not up to assuming the presidency in the not unlikely event he became sick or died in office. Barack Obama’s campaign chided McCain for putting an obscure, former small-town mayor “a heartbeat away from the presidency.” Of course, McCain lived another ten years and would have completed two terms in office had he been elected and then re-elected.

What do we know about the current presidential candidates?

Joe Biden turns 78 next month. His fragile appearance is hard to ignore. He routinely puts “a lid” curtailing the day’s public appearances, well before noon. Throughout the campaign, his in-person appearances have been rare and brief. His medical history—including two brain aneurysms many years ago, high cholesterol, an irregular heartbeat, and multiple surgeries and physical therapy treatments—led his former physician to state nearly a year ago that “he’s not a healthy guy.”

Donald Trump is 74 and borderline obese. Based on an elevated coronary CT calcium score and a history of elevated cholesterol, he likely has some coronary artery disease, though this is common in men his age. He apparently has survived a coronavirus infection without sequelae and is back on the campaign trail.

Both men are significantly older and less fit than the previous three presidents, Barack Obama, George W. Bush, and Bill Clinton. Bush, the oldest, was only 62 when he left office after two terms. There is a not-insignificant chance that either Trump or Biden could become incapacitated or die in the next four years.

It’s happened before. In 1840, William Henry Harrison—at 68, the oldest person to become president until Ronald Reagan—died within a month of his inauguration and was succeeded by John Tyler. In 1919, Woodrow Wilson suffered debilitating strokes that left him paralyzed on his left side and severely incapacitated. His wife Edith and his physician Cary T. Grayson hid the severity of his condition from the Cabinet, his staff, and the public. Until the end of his term, nearly a year and a half later, all communications with Wilson were funneled through Edith, who many historians believe acted as the de facto president.

In Wilson’s time, the succession of power was governed by Article II, Section 1, Clause 6 of the Constitution, which states that in the case of the president’s “Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.” But there was no definition of inability and no set procedure for making this determination. Wilson’s vice president, Thomas Marshall, refused to assume the presidency unless the Congress, Edith Wilson, and Dr. Grayson declared the president incapacitated. No one was willing to certify Wilson’s “inability to discharge the powers and duties” of the presidency.

The uncertainty surrounding the transfer of authority in the event of presidential incapacity existed until the adoption of the 25th Amendment in 1967, which specified that when “the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” make a written declaration that the president is “unable to discharge the powers and duties of his office,” the vice president becomes acting president.

Congress has never designated a body to act in concert with the vice president to declare the president unable to serve. But the recent proposal by Speaker Nancy Pelosi to create such a body, while widely interpreted as directed against President Trump, seems far more likely to be invoked against a President Biden.

The vice president is the indispensable player in the 25th Amendment scheme, which requires him to act in concert with either the Cabinet or the congressional body. Despite repeated entreaties from Trump’s detractors, Vice President Pence has been unwilling to declare the president mentally unfit and, barring some major health event, would be unlikely to do so if Trump is reelected. But a future Vice President Kamala Harris, together with the congressionally designated body if a Biden Cabinet would not acquiesce, might be willing to make such a declaration regarding Biden. Harris’s gaffe about economic plans in an upcoming “Harris administration” suggests she believes that a vote for Biden is a vote for President Harris.

Even as the Obama-Biden campaign tried to exploit the poor public perception of vice presidential candidate Palin in 2008, Biden reportedly said, “no one decides who they’re going to vote for based on the vice president.” Maybe this year, they should.

Photos: Justin Sullivan/Getty Images

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