The 25th and the 45th

by Michael Liss

What happens when you get a bunch of lawyers together to discuss the possibility of a coup d’état? A Constitutional coup d’état?

Don’t faint. To the obvious disappointment of a journalist who attended, this wasn’t some Trotskyite meeting in a small room with nicotine-stained walls, but a conference at the Fordham University School of Law, celebrating the 50th anniversary of the adoption of the 25th Amendment “Continuity in the Presidency: Gaps and Solutions. Building on the Legacy of the 25th Amendment.”

Lawyers being lawyers, there was a lot of talking and hypothesizing and arcana, spiced up with some name-dropping of the still and once-famous, and more than a little inside baseball. I can’t do justice to the whole story, but it makes for fascinating hearing: How Birch Bayh, then Indiana’s junior Senator and 99th in Senatorial seniority, managed to keep alive the Subcommittee on Constitutional Amendments without money or space (they met in a tiny converted bathroom) and apply his extraordinary tact to accomplish something people thought impossible. How the ABA, then a considerably smaller and less influential group still tainted by a prior obsession with Communists in the profession, saw this issue as both the right and strategically important thing to do, and provided support in Washington and critical infrastructure at the state level. And how John Feerick, as a lawyer in his mid-20s (later Dean of Fordham Law School, and a featured speaker at the conference), had an Orson-Welles-makes-Citizen-Kane moment when he managed to have published and distributed a Fordham Law Review article on Presidential Succession—in October 1963—and became an instant authority when national tragedy the very next month made it relevant.

Feerick’s issue was ripe and had been discussed for decades, but JFK’s assassination gave the reform efforts an energy that had previously been lacking. Yet success was also due in no small part to Bayh and Feerick’s insight that the enemy of the good was the perfect. They remained disciplined and focused on the two issues that were critical, filling Vice Presidential vacancies, regardless of their cause, and the voluntary or involuntary (but possibly temporary) replacement of the President due to incapacity. Because these were largely apolitical, freshly and painfully in the public eye, and perceived to be of national importance, the pair were able to convince many in Congress to put aside technical differences and turf disputes to reach consensus.

It might seem bizarre to our modern eyes, which are accustomed to seeing Vice Presidents orating, spinning, showing up at national disasters, and walking out of football games, but for 180-odd years, the Vice Presidency was a wasting asset. Once you used it up, it was gone. And Vice Presidential vacancies were common—VPs either ascended to the Presidency, or “went to a better place.” James Madison seemed to have a particularly ghoulish effect on his choices—both were lost to history on his watch. And few people cared all that much. The Vice Presidency was seen as an afterthought and even a bit of a joke. John Nance Gardner, FDR’s Veep from 1933-1941 (and former Speaker of the House, a real job), famously called it “not worth a warm bucket of piss” and he was probably exaggerating its virtues.

Why hadn’t the drafters of the Constitution been more explicit about replacing the Vice President or naming those further down the line of Presidential Succession, especially during a time when life expectancy was comparatively short? I suspect that, after the vigorous debates over the power of the Presidency itself, they wanted to conserve capital for higher priorities. Congress was given the legislative authority to enact the rest of the succession procedures, perhaps on the assumption that they would do so in a relatively apolitical way. In 1787, this made sense, as there were no real political parties. But by 1791, when a House committee recommended that the third in line be the Secretary of State, it was blocked by Senators in the newly organized Federalist Party. They loathed Secretary of State Thomas Jefferson, who was, by then, leading the opposition. So in 1792, Congress passed the first Presidential Succession Act, naming the Senate President Pro Tempore third in line, and the Speaker of the House fourth. This arrangement lasted for nearly 100 years, until 1886, when Congress removed the Speaker and the President Pro Tem entirely, and replaced them with Cabinet members (led by the Secretary of State). In 1947, in the wake of FDR’s death, Congress revisited the issue, placing the Speaker third and the President Pro Tem fourth, with Cabinet members following.

Intriguingly enough, only the 1886 Act implicitly dealt with the core political problem that the Federalist Senators had acknowledged when threatened with a Jefferson Presidency—what would happen if partisan control flipped as a result of succession? The 1947 Act actually increased the possibility that this could occur, and subsequent events highlighted the risk. Since 1947, there have been 13 Presidents, 12 Speakers, and 42 years of at least partially divided government. Truman himself had no Vice President at all during the “Good for Nothing” GOP-controlled 80th Congress—so, for those two years, Republican dominance of government was literally a heartbeat away. Ike (who had three significant health crises during his two terms in office) had a Democratic Senate and House for all but two years.

Put it a different way. Under the present system, the Vice President is not just the successor to the President, but also the political blocking back between his frailty or mortality, and some very hostile Congressional linemen wearing different jerseys. But he has to be on the field, and. before the 25th, if fate took him, the President’s team would have to play shorthanded until the next election.

You can only challenge the odds so long, and, sooner or later, the possibility of a Constitutional crisis by means of a shift in party control within a Presidential term had to happen. What the 25th did was partially bridge that gap by creating a process for a new VP.

As we all know, the value of the new Amendment didn’t take long to manifest itself. In 1973, Spiro Agnew, under indictment for corruption, introduced a new term to the American lexicon—”nolo contendre”—and then resigned. Richard Nixon selected Gerald Ford, then House Minority Leader, who was swiftly and overwhelmingly confirmed. Nine months later, Nixon himself resigned, and suddenly the country was greeted by a President who had never before received more than 131,461 votes for anything. Yet the electorate accepted his legitimacy unhesitatingly.

Imagine the same circumstances with one exception—no 25th Amendment. Agnew resigns. There is no provision for replacing the Vice President, and therefore no soothing, well-respected Gerald Ford ready to serve. Would the entire Watergate hearings have taken a different tone? Would Howard Baker have persistently asked “what did the President know and when did he know it?” Would GOP elders in the Senate have gone to the White House to convince Nixon to resign, knowing they were turning the Presidency, and the country’s government, over to Democrat Carl Albert, the Oklahoma Congressman and Speaker of the House? As was said over and over again in 1974, the system worked.

That’s one part of the 25th. Just as important is the second prong—the temporary or permanent inability of the President to discharge his duties. This (as all good watchers of West Wing can tell you) can be initiated by the President’s voluntary declaration, and it allows the temporary transfer of power to the Vice President. The Amendment does not define what “inability” is, but what we’ve come to expect is that it results from a medical condition—either traumatic (such as the assassination attempts against Ford and Reagan), elective (Reagan’s planned cancer surgery), emergent (Ike’s three serious health crises), or dramatic (Zoe’s kidnapping). The President may resume his duties and powers on his own declaration, at a time of his own choosing.

It can also be triggered (involuntarily) by the Vice-President and a majority of the Cabinet. They can send a declaration of Presidential inability to both houses of Congress. The drafters of the 25th Amendment were not looking to turbocharge a bloodless revolution. They were thinking of Woodrow Wilson’s stroke, Ike, and Garfield’s lingering for nearly three months after being shot by Charles Guiteau. They also had in their minds the awful, but not entirely remote possibility that JFK, with his youth and apparent vigor, might have survived the assassination attempt but been permanently impaired, or even comatose.

Wisely, the 25th does not attempt to define the scope of “inability,” and many of the speakers at Fordham grappled with this. Gunshots, strokes, and comas are easy. Mental issues, including cognitive decline and various personality disorders, are far more challenging, as is the issue of when the President himself thinks he is able to resume his duties. The drafters clearly realized this, and so they included a saving provision for a dissenting President. If he’s been declared disabled by his VP and half his Cabinet, he can dispute the finding, either immediately or later on, and then Congress must (as opposed to may) rapidly investigate, and vote to confirm the disability by a two-thirds margin in both the House and Senate. One vote short in either chamber and the President can reclaim his office.

The conferees spent a considerable amount of time on medical and mental issues. Left largely unmentioned was President Trump’s unique persona. Instead, they focused on a future in which Presidents show organic issues like a measurable significant cognitive decline or dementia, or display personality disorders that interfere with their ability to carry out their duties. Everyone understood that this was a political question as much as a medical one. Doctors cannot be given license to re-litigate an election. But we are discussing the capacity of the most powerful person on Earth, not whether Mom and Dad are still with it enough so they don’t have to go to a nursing home. All agreed that standards had to be developed, albeit within the construct of reconciling complex issues of patient privacy, medical ethics, and the dignity of the office itself. There were several thoughtful suggestions from panelists, ranging from a multi-member bi-partisan medical board to placing a permanent mental health specialist on the White House Medical Unit. But the core problem remains the same—defining how much impairment justifies (both “legally” and politically) the extreme measure of removal. We aren’t (and shouldn’t) going to have a Caine Mutiny cross examination.

The great 16th Century physician and surgeon Ambroise Paré said, “Je le pansai, Dieu le guérit” (“I dressed him, and God healed him”). The same almost fatalistic acknowledgement of the limitations of the plans of humans might have also been uttered by Senator Bayh and Dean Feerick. Even the best designed mechanisms can have shortcomings, and all can be sabotaged. The Fordham conference was designed both as a celebration of their work, and as a forum for new innovations to meet more recently emergent needs.

The process will take time, but the catalyst for beginning is staring us all in the face. And rules matter. Process matters. Fairness matters. The lesson from 240 years of self-governing is that the public is both intellectually and emotionally more satisfied when the results are seen as arrived at with integrity. Let’s refresh the 25th, find ways to insure that personal misfortunes remain personal, and neither damage the country nor are exploited as political opportunities.

We should always be working on our democracy. And, if not now, when? To quote West Wing’s President Bartlet, “You know what? Break’s over.”

To reference Fordham’s superb archive on the 25th, see http://ir.lawnet.fordham.edu/twentyfifth_amendment_archive/

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