Thread by @opinion

Now that Trump has tested positive for Covid-19 and is staying at Walter Reed, the DOJ is almost certainly focusing on the 25th Amendment, which provides for the transfer of presidential authority to the vice president trib.al/r3xCtFM

No one who works for a sitting president wants to think about that amendment.

But in any administration, if the president is sick, the lawyers and the vice president have to be clear on what the 25th Amendment says and requires trib.al/r3xCtFM

For some imaginable health outcomes, especially those associated with Covid-19, the 25th Amendment is ambiguous.

It offers two different routes by which the transfer of power can occur. Under section 3, the president voluntarily transfers power to the VP trib.al/r3xCtFM

Under section 4, the decision is made by the president’s own team – by majority vote:

Section 4 also allows a role for Congress trib.al/r3xCtFM

If power is transferred to the vice president, the president can produce a written declaration that he is well and can become president again – unless the VP and a majority disagree.

In the (unlikely) event of disagreement, Congress resolves the issue trib.al/r3xCtFM

The president will prevail unless both houses vote, by a two-thirds margin, that he cannot discharge the powers and duties of his office trib.al/r3xCtFM

In 1981, @CassSunstein was a young lawyer in the Office of Legal Counsel of the Department of Justice.

His boss, Theodore Olson, had asked him, very early in Ronald Reagan’s presidency, to become the resident expert on the 25th Amendment trib.al/r3xCtFM

Cass thought it was a hypothetical exercise until John Hinckley shot Reagan.

The president was in worse shape than the press was reporting. Cass was told to write two declarations, transferring power to Vice President George H.W. Bush trib.al/r3xCtFM

Fortunately, Reagan recovered well, and no one needed to invoke the 25th Amendment.

For that reason, we didn’t need to focus on a crucial unresolved question: the meaning of “unable,” which is the amendment’s most important word trib.al/r3xCtFM

If the president has mild flu-like symptoms, the 25th Amendment should not and cannot be invoked.

If the president is essentially flat on his back and unable to do his job, the 25th Amendment must be invoked. That is not discretionary trib.al/r3xCtFM

Unfortunately, we can also imagine borderline cases. The course of Covid-19 is unpredictable:

➡️Extreme fatigue
➡️Headaches and cognition

For some symptoms, people can reasonably disagree about whether it renders its victims “unable” to do their jobs trib.al/r3xCtFM

It’s highly unlikely, but we cannot rule out a situation in which the president refuses to sign a declaration under section 3 but in which the vice president and the cabinet are compelled to proceed under section 4 trib.al/r3xCtFM