Hostname: page-component-586b7cd67f-t7czq Total loading time: 0 Render date: 2024-11-25T15:19:48.380Z Has data issue: false hasContentIssue false
  • English
  • Français

Presidential inability: Filling in the gaps

Published online by Cambridge University Press:  18 January 2016

John D. Feerick
John D. Feerick*
Affiliation:
Fordham School of Law 150 West 62nd Street New York, NY 10023 [email protected]
Get access

Abstract

This article focuses on potential gaps caused by the absence from the Twenty-Fifth Amendment of provisions to deal with the disability of a Vice President and the omission from the statutory line of succession law of provisions comparable to Sections 3 and 4 of the Twenty-Fifth Amendment for when there is an able Vice President. The analysis offers a critical review of the latent ambiguities in the succession provision to the United States Constitution, noting problems that have arisen from the time of the Constitutional Convention, to John Tyler's accession to office, to numerous disability crises that presented themselves throughout the twentieth century, to the present day. As the world becomes more complex and threats to the presidency more common, continued examination of our succession structure and its adequacy for establishing clear and effective presidential succession provisions under a broad range of circumstances is of paramount concern. This article embraces this robust discussion by offering some suggestions for improving the system in a way that does not require a constitutional amendment. The first part of the analysis traces the events that have driven the development of the nation's succession procedures. The second part examines the inadequacies, or “gaps,” that remain in the area of presidential inability, and the third part sets forth recommendations for resolving these gaps.

Keywords

Presidential disabilitypresidential successionTwenty-Fifth AmendmentPresidential Succession Act of 1947contingent grant of power theory
Type
Research Articles
Information
Politics and the Life Sciences , Volume 33 , Issue 2 , Fall 2014 , pp. 11 - 36
Copyright
Copyright © Association for Politics and the Life Sciences 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Feerick, John D., From Failing Hands: The Story of Presidential Succession (New York: Fordham University Press, 1965), pp. 23–38.Google Scholar
2. U.S. Constitution, Article II, Section 1, Clause 6. See Appendix A.Google Scholar
3. Farrand, Max, ed., The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1937/1967), p. 427.Google Scholar
4. U.S. Constitution, Article II, Section 1, Clause 6. See Appendix A.Google Scholar
5. “Symposium: The adequacy of the presidential succession system in the 21st century: Filling the gaps and clarifying the ambiguities in constitutional and extraconstitutional arrangements,” Fordham Law Review, 2010, 79(3): 775–1476. [hereinafter “Fordham symposium”]; “Ensuring the stability of presidential succession in the modern era: Report of the Fordham University School of Law's Clinic on Presidential Succession,” Fordham Law Review, 2012, 81(1): 1-173. [hereinafter “Ensuring the stability of presidential succession”]Google Scholar
6. Presidential Succession Act of 1792, Ch. 8, 1 Stat. 239, 239-241 (repealed 1886). [hereinafter Presidential Succession Act of 1792]Google Scholar
7. From Failing Hands, supra note 1, at pp. 59–61.Google Scholar
8. Id. at pp. 61–62. A more detailed discussion regarding whether legislators are “Officers” as contemplated in the Constitution is found in, “Ensuring the stability of presidential succession,” supra note 5, at pp. 36–38.Google Scholar
9. Id. at p. 60–61.Google Scholar
10. Id. at p. 61(quoting a letter written by William Rives, who had studied law under Jefferson: “It was the pretension of the secretary of the treasury and his friends, that, in analogy to the position of the first lord of the treasury in the English cabinet, he ought to be considered prime minister and head of the cabinet here. A legislative declaration that the secretary of State should succeed to the Presidency in the event of a double vacancy … would, it was thought, operate as a negative to this pretension.”).Google Scholar
11. Feerick, John D., “Presidential succession and inability: Before and after the Twenty-Fifth Amendment,” Fordham Law Review, 2010, 79(3): 907–949, at pp. 918-919. [hereinafter “Presidential Succession and Inability”]Google Scholar
12. Feerick, John D., The Twenty-Fifth Amendment: Its Complete History and Applications, 3rd ed. (New York: Fordham University Press, 2014), p. 6. [hereinafter The Twenty-Fifth Amendment]Google Scholar
13. Id. at p. 7.Google Scholar
14. Id.Google Scholar
15. Id.Google Scholar
16. Id.Google Scholar
17. Id. at pp. 313–14.Google Scholar
18. U.S. Constitution, Amendment XXV, Sections 1, 3-4. See Appendix E.Google Scholar
19. “Presidential succession and inability,” supra note 11, at p. 919.Google Scholar
20. Id.Google Scholar
21. The Twenty-Fifth Amendment, supra note 12, at p. 8.Google Scholar
22. “Presidential succession and inability,” supra note 11, at p. 919.Google Scholar
23. Id. at p. 920.Google Scholar
24. The Twenty-Fifth Amendment, supra note 12, at pp. 8–10.Google Scholar
25. Id. at p. 9.Google Scholar
26. Id.Google Scholar
27. “Presidential succession and inability,” supra note 11, at pp. 919–920.Google Scholar
28. The Twenty-Fifth Amendment, supra note 12, at p. 8.Google Scholar
29. Id.Google Scholar
30. Id. at p. 9.Google Scholar
31. “Presidential succession and inability,” supra note 11, at p. 920.Google Scholar
32. Id.Google Scholar
33. The Twenty-Fifth Amendment, supra note 12, at p. 38.Google Scholar
34. Presidential Succession Act of 1792, supra note 6.Google Scholar
35. Presidential Succession Act of 1886, Ch. 4, 24 Stat. 1, 1-2 (repealed 1947) (creating a line of succession that included, in order, the Secretary of State, Secretary of the Treasury, Secretary of War, Attorney General, Postmaster General, Secretary of the Navy, and Secretary of the Interior). [hereinafter Presidential Succession Act of 1886]Google Scholar
36. Id.Google Scholar
37. “Presidential succession and inability,” supra note 11, at p. 920.Google Scholar
38. Id.Google Scholar
39. From Failing Hands, supra note 1, at pp. 176–177.Google Scholar
40. Tumulty, Joseph P., Woodrow Wilson As I Know Him (Garden City, NY: Doubleday, 1921), pp. 443–444.Google Scholar
41. “Presidential succession and inability,” supra note 11, at p. 920.Google Scholar
42. Id. See the discussion of Marshall's tenure as Vice President in the article by Joel Goldstein in this issue.Google Scholar
43. The Twenty-Fifth Amendment, supra note 12, at pp. 49–50.Google Scholar
44. Id. at p. 50.Google Scholar
45. Id.Google Scholar
46. Id.Google Scholar
47. Presidential Succession Act of 1947, Title 3, Section 19. [hereinafter Presidential Succession Act of 1947] See Appendix D.Google Scholar
48. From Failing Hands, supra note 1, at p. 205.Google Scholar
49. “Presidential succession and inability,” supra note 11, at p. 921.Google Scholar
50. The Twenty-Fifth Amendment, supra note 12, at p. 50.Google Scholar
51. Hearings before the Special Subcommittee on Study of Presidential Inability of the House Committee on the Judiciary, 84th Congress 3-6 (1956).Google Scholar
52. The Twenty-Fifth Amendment, supra note 12, at pp. 50–51.Google Scholar
53. Staff of House Committee on the Judiciary of the 84th Congress, “Presidential inability: Analysis of replies to a questionnaire and testimony at a hearing on presidential inability,” 1957, 4, p. 49.Google Scholar
54. The Twenty-Fifth Amendment, supra note 12, at pp. 50–51.Google Scholar
55. Id. at p. 51.Google Scholar
56. Hearings before the Special Subcommittee on Study of Subcommittee on Study of Presidential Inability of the House Committee on the Judiciary, 85th Congress 7-8 (1957).Google Scholar
57. The Twenty-Fifth Amendment, supra note 12, at p. 52.Google Scholar
58. Hearings on Presidential Inability Before the Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary, 85th Congress1 (1958).Google Scholar
59. The Twenty-Fifth Amendment, supra note 12, at p. 52.Google Scholar
60. Id. at p. 51.Google Scholar
61. Id. at pp. 52–53.Google Scholar
62. Id. at p. 53.Google Scholar
63. “Presidential succession and Inability,” supra note 11, at p. 921.Google Scholar
64. Id. at 921-22.Google Scholar
65. The Twenty-Fifth Amendment, supra note 12, at pp. 53–54.Google Scholar
66. U.S. Constitution, Amendment XXV. See Appendix E.Google Scholar
67. “Presidential succession and Inability,” supra note 11, at p. 922.Google Scholar
68. The Twenty-Fifth Amendment, supra note 12, at p. 54.Google Scholar
69. Presidential inability: Hearings before the Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary, 88th Congress10 (1963).Google Scholar
70. “Presidential succession and inability,” supra note 11, at p. 922.Google Scholar
71. Id.Google Scholar
72. From Failing Hands, supra note 1, at pp. 19–20.Google Scholar
73. CBS Reports: The crisis of presidential succession (CBS television broadcast, January 1964).Google Scholar
74. The Twenty-Fifth Amendment, supra note 12, at p. 56.Google Scholar
75. Id.Google Scholar
76. Id. at pp. 56–57.Google Scholar
77. Id. at p. 57.Google Scholar
78. Id. at pp. 57–58.Google Scholar
79. Id.Google Scholar
80. Id. at p. 58.Google Scholar
81. Id. at p. 59.Google Scholar
82. Id.Google Scholar
83. Id. at p. 63.Google Scholar
84. Id. at p. 64.Google Scholar
85. Id. at p. 66.Google Scholar
86. Id. at p. 71.Google Scholar
87. Id.Google Scholar
88. Id. at p. 74.Google Scholar
89. Id.Google Scholar
90. Id. at p. 75.Google Scholar
91. Senate Report No. 88-1382 (1964).Google Scholar
92. The Twenty-Fifth Amendment, supra note 12, at pp. 79–91.Google Scholar
93. Id. at pp. 91–100.Google Scholar
94. Id. at pp. 100–101.Google Scholar
95. Id. at p. 100.Google Scholar
96. Id. at p. 101.Google Scholar
97. Id. at p. 104.Google Scholar
98. Id. at p. 105.Google Scholar
99. U.S. Constitution, Amendment XXV, Section 1. See Appendix E.Google Scholar
100. U.S. Constitution, Amendment XXV, Section 2. See Appendix E.Google Scholar
101. U.S. Constitution, Amendment XXV, Section 3. See Appendix E.Google Scholar
102. U.S. Constitution, Amendment XXV, Section 4. See Appendix E.Google Scholar
103. Id. See Appendix E.Google Scholar
104. “Presidential succession and inability,” supra note 11, at pp. 930–931.Google Scholar
105. “Ensuring the stability of presidential succession,” supra note 5, at pp. 81–82(text of letters transferring and resuming powers). See Appendix G.Google Scholar
106. Id.Google Scholar
107. “Presidential succession and inability,” supra note 11, at p. 929.Google Scholar
108. Id. at pp. 929–930.Google Scholar
109. Reagan, Ronald, An American Life (New York: Simon & Schuster, 1990), p. 500.Google Scholar
110. “Ensuring the stability of presidential succession,” supra note 5, at pp. 82–83(text of letters transferring and resuming powers). See Appendix H.Google Scholar
111. “Presidential succession and inability,” supra note 11, at p. 932.Google Scholar
112. The Twenty-Fifth Amendment, supra note 12, at pp. 202–203.Google Scholar
113. U.S. Constitution, Amendment XXV, Sections 3-4. See Appendix E.Google Scholar
114. The ABA conference and recommendations are discussed in From Failing Hands, supra, note 1, at pp. 244–254. To be noted also is that the opinion released by Attorney General Robert Kennedy in 1961, in support of the disability arrangement entered into between President Kennedy and Vice President Johnson, also made reference to a statutory successor replacing the Vice President in the event there was a vacancy in the office of Vice President. The Twenty-Fifth Amendment, supra note 12, at pp.54, 320-337.Google Scholar
115. U.S. Constitution, Amendment XXV, Section 1 (“In the case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”) See Appendix E.Google Scholar
116. U.S. Constitution, Amendment XXV, Section 2 (“Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both House of Congress.”) See Appendix E.Google Scholar
117. U.S. Constitution, Amendment XXV, Section 4. See Appendix E.Google Scholar
118. “Presidential succession and inability,” supra note 11, p. 941 (citingSilva, Ruth C., Presidential Succession [Ann Arbor: University of Michigan Press, 1951], at p. 101). [hereinafter Presidential Succession]Google Scholar
119. U.S. Constitution, Article II, Section 1, Clause 6. See Appendix A.Google Scholar
120. Presidential Succession Act of 1947, supra note 47. See Appendix D.Google Scholar
121. Presidential Succession Act of 1792, supra note 6.Google Scholar
122. Presidential Succession Act of 1886, supra note 35.Google Scholar
123. Presidential Succession Act of 1947, supra note 47. See Appendix D.Google Scholar
124. Title 3, Section 20.Google Scholar
125. U.S. Constitution, Article I, Section 8, Clause 18.Google Scholar
126. 17 US (4 Wheat) 316, 421 (1819).Google Scholar
127. Id.; “Presidential succession and inability,” supra note 11, at p. 942.Google Scholar
128. The Twenty-Fifth Amendment, supra note 12, pp. 57–58. (The recommendation included in ABA proposal stated, “In the event that the President does not make known his inability, it may be established by action of the Vice President or person next in line of succession with concurrence of a majority of the Cabinet or by action of such other body as the Congress may by law provide.”)Google Scholar
129. U.S. Constitution, Amendment XXV, Section 4. See Appendix E.Google Scholar
130. Presidential Succession Act of 1947, supra note 47. See Appendix D.Google Scholar
131. From Failing Hands, supra note 1, at pp. 147–151, 162-180.Google Scholar
132. “Presidential succession and inability,” supra note 11, at p. 941.Google Scholar
133. Id. at p. 940(citing Martin v. Mott, 25 U.S. (12 Wheat.) at 30-31).Google Scholar
134. Id. at p. 941.Google Scholar
135. See Appendix F for the Recommendations of the Working Group on Presidential Disability at the Jimmy Carter Center, some of which address the consultation that might occur in making a disability determination pursuant to Section 4.Google Scholar
136. Silva, Ruth C., “The Presidential Succession Act of 1947,” Michigan Law Review, 1949, 47(4): 451–476, at pp. 463–464. Joel Goldstein has an excellent discussion of this issue in his article in the Fordham Symposium, “Taking from the Twenty-Fifth Amendment: Lessons in ensuring presidential continuity,” Fordham Law Review, 2010, 79(3): 960-1042, at pp. 1019–1027.CrossRefGoogle Scholar
137. New York Constitution of 1777, reprinted in 5The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, Thorpe, Francis Newton, ed. (Washington, DC: Government Printing Office, 1909), p. 2633.Google Scholar
138. From Failing Hands, supra note 1, at pp. 37–38.Google Scholar
139. “Presidential succession and inability,” supra note 11, at p. 945.Google Scholar
140. Ackerman, Bruce, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (New Haven: Yale University Press, 2006), p. 157(noting that Strom Thurmond served as President pro tempore into his nineties).Google Scholar
141. Presidential Succession, supra note 118, at p. 158.Google Scholar
142. “Presidential succession and inability,” supra note 11, at p. 945.Google Scholar
143. The Twenty-Fifth Amendment, supra note 12, at p. 210(summarizing testimony of Akhil Amar before the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Property Rights, September 16, 2003).Google Scholar
144. For a discussion of congressional legislation bearing on the statutory line of succession, seeThe Twenty-Fifth Amendment, supra note 12, at pp. 207–220.Google Scholar
145. “Ensuring the stability of presidential succession,” supra note 5, at p. 42.Google Scholar
146. Id. at pp. 115–116.Google Scholar
147. Toole, James F. and Joynt, Robert A., eds., Presidential Disability: Papers, Discussions, and Recommendations on the Twenty-Fifth Amendment and Issues of Inability and Disability Among Presidents of the United States (Rochester: University of Rochester Press, 2001), p. 537. [hereinafter Presidential Disability]Google Scholar
148. The Twenty-Fifth Amendment, supra note 12, at p. 224.Google Scholar
149. Id. at p. 231.Google Scholar
150. Id.Google Scholar
151. Presidential Disability, supra note 147; The Twenty-Fifth Amendment, supra note 12, at pp. 225–232.Google Scholar
152. Presidential Disability, supra note 147, at pp. 167–168; The Twenty-Fifth Amendment, supra note 12, at p. 31.Google Scholar
153. Id. at p. 235. See Appendix F for a list of the Working Group's recommendations.Google Scholar
154. Presidential Disability, supra note 147, at p. 537.Google Scholar
155. Id.Google Scholar
156. Id. at p. 538. See also, note 158, infra.Google Scholar
157. From Failing Hands, supra note 1, at p. 249.Google Scholar
158. Presidential Disability, supra note 147, at p. 538.Google Scholar
159. From Failing Hands, supra note 1, at pp. 249–252; see also, The Twenty-Fifth Amendment, supra note 12, at pp. 120, 236.Google Scholar
160. “Ensuring the stability of presidential succession,” supra note 5, at pp. 31–32.Google Scholar
161. Id.Google Scholar
162. Id. at p. 33.Google Scholar
163. Id. (citing letter from President Dwight D. Eisenhower to Richard Nixon, February 5, 1958).Google Scholar
164. The Twenty-Fifth Amendment, supra note 12, at pp. 320–337(full text of the letter agreement between President Johnson and Speaker McCormack).Google Scholar
165. “Ensuring the stability of presidential succession,” supra note 5, at p.33 (citing Gustafson, Adam R.F., “Presidential inability and subjective meaning,” Yale Law & Policy Review, 2009, 27: 459–512, at p. 477. [hereinafter “Presidential inability and subjective meaning”])Google Scholar
166. U.S. Constitution, Amendment XXV, Section 2. See Appendix E.Google Scholar
167. Cheney, Richard, In My Time: A Personal and Political Memoir (New York: Simon & Schuster, 2012), p. 320.Google Scholar
168. The Twenty-Fifth Amendment, supra note 12, at p. 203.Google Scholar
169. Id. at p. 23.Google Scholar
170. Thompson, Kenneth W., ed., Papers on Presidential Disability and the Twenty-Fifth Amendment, Vol. 3 (Lanham, MD: University Press of America, 1988), p. 148.Google Scholar
171. Id.Google Scholar
172. Id.Google Scholar
173. “Ensuring the stability of presidential succession,” supra note 5, at p. 32(quoting 111 Congressional Record 7941 (1965) [statement of Rep. Richard Poff]).Google Scholar
174. The Twenty-Fifth Amendment, supra note 12, at pp. 202–203.Google Scholar
175. “Ensuring the stability of presidential succession,” supra note 5, at p.32(quoting Presidential Inability and Vacancies in the Office of Vice President: Hearing Before the Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary, 89th Congress. 21 (1965)).Google Scholar
176. The Twenty-Fifth Amendment, supra note 12, at p. 230.Google Scholar
177. Transcript of Symposium Panel and Response: Interpreting Ambiguities in Current Constitutional Arrangements, 2010, p. 71 (Fordham Law Review and the school's library have on file a transcript of the proceedings held on April 16 and 17, 2010).Google Scholar
178. “Ensuring the stability of presidential succession,” supra note 5, at pp. 32–33(quoting “Presidential inability and subjective meaning,” supra note 165, at p. 479).Google Scholar
179. For a discussion of these subjects, seeThe Twenty-Fifth Amendment, supra note 12, at pp. 236–239, as well as “Ensuring the stability of presidential succession,” supra note 5.Google Scholar