25th Amendment Genesis, Part II: Presidential Disability and Reform, 1961-1967 - The American Spectator | USA News and Politics
25th Amendment Genesis, Part II: Presidential Disability and Reform, 1961-1967
Lyndon Johnson sworn in as president on Air Force One, Nov. 22, 1963 (Wikimedia Commons/Cecil W. Stoughton)

In Part I, I covered historical precedents from the Republic’s 1789 birth to the end of President Eisenhower’s tenure. Part II covers the Kennedy-Johnson years, when events pushed the president and Congress towards adopting the 25th Amendment to stabilize presidential succession.

Turning Point: JFK’s Thousand Days (1961-1963)

The ascension of John Fitzgerald Kennedy as 35th president of the United States on January 20, 1961, was an especially festive occasion. The first inaugural telecast nationwide, its audience was swelled by students on the eastern seaboard, much of which was blanketed by a blizzard in the preceding 24 hours. A seemingly vigorous president, three decades younger than the elderly man he replaced, stepped up to the microphone to deliver what has since been widely recognized as one of the greatest inaugural addresses.

Kennedy’s apparent robust health was fiction: he suffered from numerous maladies, some known — his back troubles; others unknown — his having Addison’s disease, a rare malady, potentially fatal, in which the adrenal glands develop hormonal — and, hence, functional — insufficiency. JFK was philosophical about the risk of assassination, saying matter-of-factly: “If anyone is crazy enough to want to kill a president of the United States, he can do it. All he must be prepared to do is give his life for the president’s.”

Author Gerald Posner recounts in his superb 1994 book, Case Closed, the chaotic aftermath of the shooting and JFK’s having been pronounced dead at Parkland Hospital. The president’s body was to be flown back to the Capital on Air Force One with vice president Lyndon Johnson and First Lady Jacqueline Kennedy. But the Dallas authorities stated that they would first perform an autopsy in Dallas before allowing shipment. LBJ would not leave without the casket, and Mrs. Kennedy would not leave the hospital without her husband’s body. A tense confrontation between the Secret Service ensued, with the agency prepared to force the issue. Unknown to those outside the hospital, the doctor in charge of the emergency room had authorized removal. In any event, violence was averted, and before takeoff LBJ was sworn in on Air Force One by a federal judge.

Such disputes are of course well below the level of constitutional questions, but one thought dominated discussion about presidential disability, in the wake of the assassination. John Feerick, in his authorized history of the 25th Amendment, quotes New York Times columnist James Reston, writing on November 23:

For an all-too brief hour today, it is not clear again what would have happened if the young president, instead of being mortally wounded, had lingered for a long time between life and death, strong enough to survive but too weak to govern.

LBJ fully understood this, and made shepherding a constitutional amendment covering presidential and (with limits discussed below) vice-presidential succession a priority, from proposal through final ratification.

The 25th Amendment Emerges: 1964-1967

Historically antecedent to the serial deaths and disabilities of presidents and vice presidents was how the 1787 Grand Convention dealt with succession issues. Feerick notes that the vice presidency was minimally covered during the three and a half months in Philadelphia. The vice president, a member of the executive branch, would be the ex officio president of the Senate; in event of presidential disability or death, he would succeed the president.

Although not explicit in the original constitutional language, the Framers drew a clear distinction between a temporary acting president, and a permanent successor president. The former would assume, for the duration of the president’s disability, the powers and duties” of the president, but not the actual office of president. This allowed a disabled president, upon removal of disability, to resume his position as chief executive. Only if the president leaves office irrevocably — dies, resigns, or is removed — does the vice president ascend to the office of president. This arrangement, informal and improvised ad hoc, prevailed for 150 years, until superseded by Section 3 of the 20th Amendment, first used in January 1937.

Though treated as superfluous appendages well into the 20th century, between 1841 and 1964 eight vice presidents succeeded a deceased president. In all, in the 176 years from 1789 to 1964, the vice presidency was vacant for over 37 years — more than 20 percent of the time.

And up until 1886, the sole provision, by 1792 statute, for presidential succession beyond the vice presidency provided only for the president pro tem of the Senate and then the speaker of the House; no Cabinet officers, nor any other persons, were in the line of presidential succession. The Speaker was placed behind the president pro tem because members of the House represent a single Congressional district, whereas senators are chosen statewide (originally by state legislatures, then by voters upon ratification of the 17th Amendment in 1913).

Flashback: 1886 and 1947 Succession Laws

Ironically, while for a century the new republic had no provision for succession to the vice presidency, during colonial times there had been such arrangements. Provinces had a governor and lieutenant governor; if both were vacant, a governor’s council (loosely equivalent to today’s presidential Cabinet) or the senior councilor would step up. Both Rhode Island and Connecticut used legislative replacements on “numerous occasions.”

Nothing was done in the First Congress; Feerick notes that one member of that Congress forecast that a double vacancy would not occur even once in a century; another member said that it would not happen more than once in — NOT making this up — 840 years. (A double vacancy can be simultaneous — in 1963 had LBJ been riding in an open car and there had been a second shooter; or it can be serial — in 1973 had Nixon resigned after Agnew did and before a new vice president was confirmed by Congress.)

The Second Congress passed the first succession law (noted above), and no double vacancy occurred, though presidents John Tyler (injured by an explosion) and Millard Fillmore (taken seriously ill with malaria) made for close calls. The bill also mandated a special election in event of a double vacancy.

The 1886 law eliminated the succession of president pro tem and Speaker, substituting Cabinet line of succession (only seven departments in 1886) in this order: State, Treasury, War, Attorney-General, Postmaster-General, Secretary of the Navy, and Secretary of the Interior. From 1886 to 1945, three presidents and two vice presidents died in office, but fortunately, there was no double vacancy.

The 1947 law in my view was the worst domestic policy mistake of Truman’s presidency. Truman proposed what remains the law today: the Speaker of the House and then the Senate president pro tem stand in third and fourth positions. He reasoned that although the Speaker is elected by only 1/435th — less than one quarter of one percent — of the national electorate, the House elects a Speaker, representing all House districts in that capacity. Further, House members are up for election every two years, making them more responsive to voters than senators serving six-year terms. Truman’s choices were politically palatable to the Republicans, who after the 1946 elections controlled both houses of Congress. The prospect of control shifting to the opposition party should a double vacancy occur would effectively repudiate the voters’ choice of administration — voters vote not for presidents and vice presidents alone (or against the other party’s ticket); they also vote to be governed by a particular administration, with a mid-term grade given after two years. As Eugene McCarthy — an independent, albeit he usually voted with the Democrats — put it in 1964:

The succession law should respect the mandate of the people, who vote not only for a man, but also, in a broad way, for his party and his program. The elevation of a leader of another party in mid-term is undesirable in principle and could have most unfortunate practical effects.

Frequently, the opposition party has either controlled one or both houses of Congress. In the 19th century this happened with 15 Congressional sessions, first in 1827; in the 20th, 20 times, first in 1913; and already in the 21st, 5 times, first in 2001. The current Congress is the 117th. Thus of 117 Congresses, 40 times — 34 percent — have featured partisan division. Indeed, Presidents Ronald Reagan and George H.W. Bush, during their entire 12 years in office, never controlled both houses.

When the Nixon-Agnew crises for 1973 and 1974 (more on this below) came to pass, the House Speaker was elderly Democrat Carl Albert of Oklahoma, a cipher whom no one save political junkies and insiders have ever heard of, outside his home state. Albert, to his credit, said: “Lord help me; I pray every night it doesn’t happen.”

The 25th Amendment

The text of the 25th Amendment is one of the longest and most complex of the 27 Amendments ratified in the 230 years that began with the first ten — the Bill of Rights — on December 15, 1791. It is divided into four sections, the first three of which are simple, each addressing a single problem. Section 4 is long, complex, and addresses several problems. Section 1 provides that whenever — and however — the president permanently leaves office, the vice president automatically succeeds him. Section 2 provides that the new president shall nominate a vice president, effective upon confirmation by majority vote of both houses of Congress.

Section 3 covers voluntary disability. It also specifies implementing procedures: a president who is temporarily disabled must send a written declaration to the Speaker and president pro tem advising them of his disability; the vice president becomes acting president, assuming the “powers and duties” of the presidency without taking office. Upon termination of the president’s disability, he sends a written declaration of recovery to the Speaker and president pro tem. The text of Section 3 does not specify when declarations become effective. During George W. Bush’s first term, Attorney General Alberto Gonzales was asked by a reporter when voluntary disability declarations become effective. He answered that Section 3 does not specifically say, and hence (his opinion, not contradicted since) such declarations are effective upon transmittal.

Section 4 encompasses in a single paragraph (numberings below are mine) the thorniest issues surrounding when a president declares, or expresses an intention to declare, himself fit to resume his office, and designated major players disagree. The “challenge” provisions, covering involuntary disability, are necessarily detailed, and can be divided into four parts:

  1. Whenever the vice president and a majority of either the Cabinet, or “such other body as Congress shall by law provide” transmits a written declaration to the Speaker and president pro tem that the president is unable to discharge the “powers and duties” of his office.
  2. Congress “shall decide” the issue, assembling within 48 hours for that purpose if not in session.
  3. Section 4 declarations become effective when received. Within 21 days of such receipt, Congress must decide the issue.
  4. If Congress fails to decide, by a two-thirds vote in each House, the president recovers the “powers and duties” of his office.

Unspecified in Section 4 is whether the declarations therein by the vice president and by the Cabinet are to be issued jointly or separately. As logistics in emergencies may dictate one form over the other, it was best left unsaid. Notably, the courts are left entirely out of these matters, with no provision for judicial review.

One final major omission: the president- or vice president-elect dies after the election and before Congress formally certifies the result. Such a procedure would properly be done by another constitutional amendment. Feerick observes that these kinds of fundamental issues are best decided in periods of relative calm, hardly the case today.

Bottom Line

If the proverbial best is the enemy of the good, then it can be said that with the 25th Amendment, the perfect is the enemy of the excellent. The 25th covers extraordinarily complex issues with remarkable clarity, few omissions, and wisely leaving unsaid certain matters that are inherently impossible to predict in advance. Put simply, presidential and vice-presidential succession are riven with the uncertainties endemic to countless possible permutations and the vagaries of human fallibility.

John Wohlstetter is author of Sleepwalking With the Bomb (Discovery Institute Press, 2d. ed. 2014)

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