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History and applications of the twenty-fifth amendment

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History and applications of the twenty-fifth amendment
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Cowperthwaite, Clint A
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xiii, 119 leaves : ; 28 cm

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Constitution (United States) ( fast )
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theses ( marcgt )
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Includes bibliographical references (leaves 114-119).
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Department of History
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Clint A. Cowperthwaite.

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Full Text
History and Applications of the Twenty-fifth Amendment
by
Clint A. Cowperthwaite
B.A., Metropolitan State College of Denver, 2001
A thesis submitted to the
University of Colorado at Denver And Health Sciences Center
In partial fulfillment
of the requirements for the degree of
Master of Arts
History


This thesis for the Master of Arts
degree by
Clint A. Cowperthwaite
has been approved
by
/ Date ^
James E. Fell, Jr.


Cowperthwaite, Clint A. (M.A., History)
History and Applications of the Twenty-fifth Amendment
Thesis directed by Associate Professor James B. Whiteside
ABSTRACT
The President of the United States has at his disposal the greatest military
arsenal in the world and immense domestic and international influence. But the
president is also human, susceptible to ailments ranging from illness to death.
In the event of a presidents impeachment or sudden death, the vice president
assumes the office of president, as outlined by the Constitution and reinforced
by precedent. What is less clear is managing temporary incapacitation. A
president in a coma, or under general anesthetic has not committed a crime and
is therefore unimpeachable. He is still alive, making vice presidential
succession impossible. A vacancy in the vice presidency complicates matters
further. If a president dies and there is a vacancy in the vice presidency, the
next in the line of succession is a member of Congress, possibly kept
uninformed and potentially a member of the oppositional party.
Until ratification of the Twenty-fifth Amendment in 1967, long-term
presidential disability and vice presidential vacancy were dangerous, unsolved


problems. A vacancy occurred eight times in the presidency before ratification,
and eleven vacancies in the vice presidency.
Prior to the Twenty-fifth Amendment, the succession problem invited the
possibility of the new occupant in the office of president or vice president
facing legal and political challenges to his illegitimacy, as well as the risk of
thwarting the political will of the electorate. The Twenty-fifth Amendment
provided a practical method to avoid these situations. This thesis explores the
why the amendment took so long to enact and examines those cases when its
provisions have been implemented.
This abstract accurately represents the content of the candidates thesis. I
recommend its publication.


TABLE OF CONTENTS
INTRODUCTION.....................................vi
CHAPTER
1. THE CONSTITUTION AND TYLER PRECEDENT.......1
2. THE PRESDIENT-VICE PRESIDENT DYNAMIC.......14
3. THE VICE PRESIDENT AND PRESIDENTIAL
DISABILITY...................................25
4. PRESIDENTIAL CONVALESCENCE..................37
5. THE 1792 SUCCESSION ACT.....................50
6. THE 1886 SUCCESSION ACT.....................57
7. THE 1947 SUCCESSION ACT.....................70
8. MAKING THE AMENDMENT........................80
9. THE 1970s APPLICATIONS......................92
10. SIDESTEPPING THE AMENDMENT................101
11. CONCLUCION................................110
BIBLIOGRAPHY.....................................114
v


INTRODUCTION
Historian Forrest McDonald, in his book The American Presidency,
defines political power as the ability to exert ones will with more or less
predictable results, to command action, to cause desired outcomes.1 The
president of the United States is often referred to as the most powerful person in
the world. He enjoys the political clout of being the most visible member of the
entire federal government. The president also commands the largest and most
lethal military arsenal in the history of the world. With the advancement of
weapons in the post-Second World War era, the presidents role includes being
the final authority in the use of nuclear weapons. A competent leader is
essential, considering the awesome power at his disposal and the immense
influence he exerts on the domestic and international stages. But the president is
also human, susceptible to all the ailments that may compromise competency
and leadership, including illness and death.
The potential for a presidential vacancy is addressed by the Constitution in
Article II, which states, In case of removal of the president from office, or of
his death, resignation, or inability to discharge the powers and duties of the said
1 Forrest McDonald, The American Presidency: An Intellectual History, (Lawrence, Kansas:
University Press of Kansas, 1994). 1.
vi


office, the same shall devolve on the vice president.2 The clause in its entirety
has been the source of great consternation for lawmakers and historians alike.
What did the framers mean by the same? Is it the office of president they
were talking about, or merely the temporary powers bestowed on the vice
president as a steward until an election could be held? As if these questions are
not enough, the lack of clarity continues. What is the definition of an
inability? Is it temporary or permanent? Can the president resume his power
if any inability subsides? Who determines a presidential inability, and if and
when it has ended? None of these questions are addressed by the Constitution.
Based solely on interpretation of Article II, there is no legal mechanism to cope
with a medical emergency to the president. An equally dangerous problem is a
vacancy in the vice presidency. If a president dies or is impeached, the
Constitution is silent on replacing the succeeding vice president. If this new
president died or was removed, who would assume the powers and duties then?
This series of Constitutional shortcomings was debated again and again in the
history of the nation in Congress, the White House, and in newspapers, with
only small steps toward improvement.
Only with the ratification of the Twenty-fifth Amendment in 1967 did a
mechanism come about for handling a presidential disability or providing the
president the power to appoint a new vice president in the event of the loss of
2 U.S. Constitution, art. 2, sec. 1, clause 6.
vii


the elected one. The first two sections of the amendment establish a clear
process for presidential and vice presidential succession:
Section 1. In case of the removal of the president
from office or of his death or resignation, the vice
president shall become president.
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 Houses of
Congress.3 4
The next two sections of the amendment reflect the demands of the
nuclear age in providing a process for the transfer of presidential authority.
Sections three and four state,
Whenever the president transmits to the President
pro tempore of the Senate and the Speaker of the
House his written declaration that he is unable to
discharge the powers and duties of his office, and
until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged
by the vice president as Acting president.
Whenever 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, transmit to the President pro tempore
of the Senate and Speaker of the House their written
declaration that the president is unable to discharge
the powers and duties of his office, the vice president
shall immediately assume the powers and duties of
the office as Acting president.
3 U.S. Constitution, amend. 25. (1967).
4 Ibid.
vm


Section four of the amendment thus permits the vice president and a majority of
the cabinet to temporarily remove a president who is unwilling or unable to
recuse himself in light of a disability. Section four also addresses the concern
of a president who does not believe himself to be disabled. It reads,
Thereafter, when the president transmits to the
Congress his written declaration that no inability
exists, he shall resume the powers and duties of his
office unless the vice president and a majority of the
cabinet transmit within four days to the Congress
their written declaration that the president is unable
to discharge the powers and duties of his office.
Thereupon Congress shall decide the issue ...
determined by two-thirds vote of both Houses that
the president is unable to discharge the powers and
duties of his office, the vice president shall continue
to discharge the same as Acting president; otherwise,
the president shall resume the powers of his office.5
The Twenty-fifth Amendment is a legal mechanism a president or vice
president in concert with the Cabinet and Congress can use to ensure the
national security of the United States. With the onset of the Cold War and the
development of nuclear weapons, one may ask why did the Twenty-fifth
Amendment take so long? There are two broad explanations for the delay.
First, nineteenth century legislators were concerned over the Constitutionality
of temporarily removing a nationally elected president, even in light of an
obvious incapacitation. Second, twentieth century presidents were reluctant to
t
relinquish the growing powers of what would be termed the imperial
5 Ibid.
IX


presidency. The decades after the Second World War provided a steady,
though slow, progression towards the amendments creation. The assassination
of President John F. Kennedy provided the.final impetus. After the
assassination, considerable concern and debate arose when Lyndon Johnson
assumed the presidency. Johnson, who had suffered a heart attack seven years
before, did not have a vice president after he vacated the office himself. The
next in the line of succession, as established by the Presidential Succession Act
of 1947, was the Speaker of the House, followed by the Senate President pro
tempore.
As the New York Times pointed out in 1964, the succession line was
fraught with potential problems.
The Speaker is John McCormack, who is seventy-
two years old. The Senate President is Carl Hayden,
who turned eighty-seven yesterday. The age of these
two officials has been one reason for concern ...
[another concern is] neither was chosen ... with any
regard for his qualifications for the presidency.6
There was immense concern about presidential succession and disability at this
critical time in the Cold War. The decade before, during the Eisenhower
administration, the problem had shown itself when the president suffered a
massive heart attack in 1955, an intestinal obstruction requiring surgery in
1956, and a stroke in 1957. Like the Kennedy assassination, Eisenhowers
6 Herbert Mitgang, Presidential Successiona Vital Issue Reexamined, New York Times, 4
October 1964, pg. E3.
X


health crises also occurred in a period of Cold War tensions. And these
examples are not the first to arise when exploring presidential disability.
The three components of the Twenty-fifth Amendment, presidential
succession, presidential disability, and vice presidential vacancy, will be
explored in the first seven chapters. The first chapter speaks to presidential
succession and the lack of instruction in the Constitution, most pertinent in the
death of President William Henry Harrison in 1841 and the succession of Vice
President John Tyler. The second and third chapters explore the problems
coping with presidential disability. The second chapter explores the president-
vice president dynamic. The limited roles played by vice presidents and their
struggle to establish themselves as members of the presidents official Cabinet
in some cases produced animosity between the two offices, thereby making the
successor to the president a distant member of the inner circle. Being outside
the presidents confidence is a major hurdle in maintaining Executive
continuity during a presidential incapacitation.
The third chapter focuses on short- and long-term presidential disability.
President Garfields 1881 assassination is the best example. The president, shot
in the back by a deranged office seeker, lingered for eighty days between life
and death, performing virtually no executive functions. President Woodrow
Wilsons stroke in 1919 and his refusal to recuse himself is strong evidence for
the need of the Twenty-fifth Amendment. President Grover Clevelands cancer
xi


surgery in 1894 and President Eisenhowers three short-term health crises are
more examples for the section of presidential disability.
The third section examines the problem of vice presidential vacancy.
Crucial times in American history saw a president without the security of a
nationally elected successor. This was evident, for example, during the
impeachment trial of President Andrew Johnson. The only Constitutionally
recognized successor for Andrew Johnson was Senator Ben Wade, who cast a
guilty vote against Johnson at his Senate trial.
Chapters in the fourth section explore the creation of the Twenty-fifth
Amendment and its applications after ratification. In the aftermath of the
Kennedy assassination, the debate in Congress investigate all the facets in
maintaining continuity in the Executive branch, dealing with temporary
incapacitation of a president, and with vacancies of the vice presidency as well.
The amendments invocation upon the resignations of Vice President Spiro
Agnew and the President Richard Nixon and the appointment of Gerald Ford to
the vice presidency and subsequent succession to the presidency are success
stories for the Twenty-fifth Amendment. These chapters also explore the
reluctance on the part of presidents to invoke the amendment after the 1970s for
fear of lowered public confidence in a temporarily disabled president. The
attempted assassination of President Ronald Reagan in 1981 is only the first of
several instances of sidestepping the amendment.
Xll


Eight American presidents died in office prior to the ratification of the
Twenty-fifth Amendment. The vice presidency was unoccupied eleven times.
By sheer luck, the two most powerful offices in the Executive branch were not
vacant at the same time. Abrupt successions and vacancies risk confusion and
panic. The Twenty-fifth Amendment guarantees continuity in the presidency in
an era of weapons of global destruction and an economy of international
interdependence.
xm


CHAPTER 1
THE CONSTITUTION AND
TYLER PRECEDENT
The complexities of the Twenty-fifth Amendment begin with the
ambiguities in the creation of the presidency. As historian Forrest McDonald
reminds his readers in The American Presidency, the establishment of the
presidency did not end with the writing and ratification of the Constitution, for
the framers deliberately sketched Article II in broad strokes, leaving the early
occupants of the executive branch to fill in the details.1 2 But when it came to
coping with presidential succession, the Constitutions vagueness and the fact
that none of the early occupants had the need to establish a precedent led
directly to the problem. The Constitution dictates that if the presidency is
vacated or the president unable to perform his duties, the same devolves onto
the vice president. Unfortunately the founding fathers gave no definition of
what presidential inability was or explained what the devolution of the same
intended.
1 Forrest McDonald, The American Presidency: An Intellectual History, (Lawrence, Kansas:
University Press of Kansas, 1994), 5.
2 United States Constitution, Article II, Section 1.
1


Was it the presidential office that would pass to the vice president, or
merely the temporary powers and responsibilities? Article II gets even more
complex when one reads further. It states, the Congress may by law provide
for the case of removal, death, resignation, or inability, both of the president
and vice president, declaring what officer shall then act as president, and such
officer shall act accordingly, until the disability be removed, or a president shall
be elected.3 What officer could Congress choose to replace, temporarily or
long-term, an elected president and vice president without compromising the
spirit of the Constitution? The vagueness of the article remained uncontested
by the first few occupants of the office of president, who thus avoided
establishing any type of precedent for future generations to follow.
For the first fifty-two years of the nations existence there was no
presidential vacancy. Never did a need arise to impeach a sitting president. In
fact, the idea that a president would serve out his entire elected term became
somewhat of a given. That is until the death of the ninth president, William
Henry Harrison in 1841. When William Henry Harrison took the oath of
office, writes historian and presidential succession expert John D. Feerick in
his book, From Failing Hands, he was in the sixty-ninth year of his life.
Perhaps it was overlooked that seven of the eight predecessors departed the
3 Constitution, Art. II, Sec. 1.
2


presidency younger than Harrison was at his inauguration.4 The 1840
campaign and election of William Henry Harrison were full of milestones.
Historian William Seale, in his work The Presidents House, notes, No
candidate in the history of the nation had ever appeared so much in his own
behalf as General Harrison; indeed he was the first presidential aspirant who
openly campaigned for himself.5 Harrison was the oldest man ever elected to
that point. His was the longest inaugural address, almost two hours in length.
Harrisons was the shortest term in office as well, as he died in April 1841, one
month to the day after his inauguration.
The first death of a chief executive came as a shock to the American
people, but paled in comparison to the shock felt by the party which placed his
vice president on the ticket. John Tylers nomination as the Whig party vice
presidential candidate was meant, as so many before and after him, to appease
supporters whose help would be needed in the general election. As Forrest
McDonald writes in The American Presidency, Tyler was a Virginia
republican of the old school who had been nominated by the Whigs solely to
balance the ticket.6 No thought was given to the idea that a vice president
4 John D. Feerick, From Failing Hands: The Story of Presidential Succession, (New York:
Fordham University Press, 1965), 89.
5 William Seale, The Presidents House, (Washington, D.C.: White House Historical
Association, 1986), 228.
6 McDonald, American Presidency, 319.
3


would assume through succession the powers and duties of the office of
president. As John Feerick points out, the fact that all of his predecessors had
lived beyond their allotted official terms, probably lulled people into thinking
there was no reason to believe that it would not be the same in this case.7
When Tyler attempted to assert power as president, the Constitution, succession
and the vice presidency became wrapped in turmoil. If Harrison left little
mark on the presidency, writes Seale, Tyler stirred a Constitutional tempest
that has never quite settled.8 Harrisons death allowed for the only precedent
on presidential succession since ratification of the Constitution.
John Tyler took the presidential oath of office in the presence of
Harrisons Cabinet. John Feerick notes, there is some dispute as to Tylers
motive for taking the oath. It is said ... he took it because he regarded himself
without it as not legally president. Others believe ... [he] took the oath in
order to remove any doubt that might arise in the future.9 Tylers ascent to the
presidency nevertheless raised a clamor over the problems of presidential
succession.
The unprecedented death of a president placed Tyler in a precarious
position. As if assuaging the concerns of Americans and legislative leaders was
7 Feerick, Failing Hands, 89.
8 Seale, Presidents House, 42.
9 Feerick, Failing Hands, 92.
4


not enough, Tyler had to confront his inherited Cabinet as well. Secretary of
State Daniel Webster attempted to make the new president feel accepted when
he informed him of the manner-in which Harrison had conducted Cabinet
meetings. Each member of the cabinet, including the president himself, Tyler
was told, held a single vote on decisions being debated, and majority rule
decided the outcome. Webster suggested this might be a promising route for
Tyler to utilize as well.10 The new president scoffed at the idea of being a mere
equal to his advisors. Biographer Robert Seager describes Tylers reaction in
his book, And Tyler Too, quoting the president as saying, I, as president, will
be responsible for my administration. I hope to have your cooperation in
carrying out its measures ... when you think otherwise, your resignations will
be accepted.11 The entire Cabinet, except Secretary of State Daniel Webster,
resigned before the year 1841 ended. Dealing with the Cabinet was only the
first of many challenges for Tyler.
Congress assembled a month after Tyler assumed the presidency. The
first session of the new Congress elected officers and, as was the custom, a
letter was sent to the President of the United States informing him of Congress
status. But in this very routine tradition began the legislative debate over
presidential succession. As the Congressional Globe documents, Mr. Wise [a
10Robert Seager, And Tyler Too: A Biography of John and Julia Tyler, (New York: McGraw-
Hill, 1963), 140-149.
11 Ibid, 149.
5


Virginia Whig] offered the usual resolution for the appointment of a committee
on the part of this house ... to wait on the President of the United States and
inform him that a quorum of the two houses had assembled, and that Congress
was ready to proceed with business. But this amendment met stiff resistance.
Mr. McKeon [a New York Democrat] moved to amend the resolution by
striking out the word president, and inserting the words, vice president, now
exercising the office of president.12 13 The House chamber voted down the
amendment, but this discussion illustrates the growing problems of legitimacy
Tyler faced. The Senate was no less divided on the question of how to address
Tyler. According to the Congressional Globe, Senator William Allen of Ohio
offered the new president the title, the vice president, on whom, by the death
of the late president, the powers and duties of the office of president have
devolved. This resolution was the basis for considerable Senate debate not
on only Tylers legitimacy, but also the latent concerns of presidential vacancy
that Harrisons death produced. In these debates the problem of the lack of
Constitutional clarity began to define itself, illustrating some of the obstacles to
producing a widely accepted mechanism for coping with vacancy.
12 Congressional Globe, 27th Congress, lsl Session, House of Representatives, 31 May 1841, pg.
2.
13 Ibid, 4.
6


In defense of his resolution to address Tyler officially as vice president,
Senator Allen read Article 2, Section 6 of the Constitution aloud and argued,
The first clause in this portion of the Constitution
classified all the contingencies under which the vice
president shall discharge the duties and exercise the
powers of president. If, therefore, the late president
had been afflicted with a disease producing, for a
time, a state of mental alienation, he would on his
recovery have been reinstated in all the powers of
that high office to which the people had elected
him.14
Senator Benjamin Tappan, an Ohio Democrat, offered support to Senator
Allens argument that Tyler was not the president, merely vice president acting
as president by offering a military analogy. If a colonel was shot in battle, the
next officer in rank took command of the regiment, but he did not thereby
become a colonel.15 But the line of reasoning behind Tylers legitimate claim
to power was also argued in the chamber. Senator Robert Walker, a Democrat
from Mississippi, made a strong defense of Tyler,
Is Mr. Tyler still the vice president discharging
additional duties? If so, why is he not here
performing the duties of vice president? Could he
come here and act as vice president for a single
moment? Surely not, for he ceased to be the vice
president, for the reason that the Constitution has
devolved upon him the office of president.16
14 Congressional Globe, 27 th Congress, 1st Session, Senate, 1 June 1841, pg. 4.
http://memory.loc.gov/cgi-bin/ampage. (accessed 10/11/2005).
15 Ibid, 4.
7


Senator Walkers point alludes to Article I, section 6 of the Constitution
forbidding any person to hold two offices in the federal government at the same
time. Walker makes a good point in that the separation of powers was
paramount, therefore Tyler must be president and not merely vice president
acting as president. Senator Walker continued with his argument reminding his
colleagues that the Constitution essentially states, that in the event of the death
of the president and vice president, the Constitution calls the officer [which is
named by the Congress] acting president, who, for a brief period, discharges the
duties of the station.16 17 Senator Allen replied with a scenario that proved to be
a concern throughout the almost two hundred year discussion of presidential
vacancy.
Suppose a president of one political party and at the
same time a vice president of another political party;
suppose the country be about equally divided
between the two, and both parties mutually and
highly incensed against each other; and under these
circumstances, the president should be seized with a
temporary illness, producing for a time, such an
alienation of mind as unfitted him for the discharge
of his official duties, in consequence of which, those
duties were discharged by the vice president, after a
time the president completely recovered. The
question would then arise, which of the two officers
should continue in the chair. The question of
16 Ibid, 5.
17 Ibid, 5.
8


succession had oftener than any other destroyed the
peace of nations.18
It is that argument of maintaining presidential continuity in the Executive
branch that remained problematic in presidential vacancy until ratification of
the Twenty-fifth Amendment. Many interpreted the Tyler Precedent to mean
that once a vice president assumed the duties of Chief Executive, a fully
recovered, popularly elected president could not take his office back. To his
credit, President Tyler took to his duties with considerable confidence and
decisiveness. But, the inherent respect given to any nationally elected leader,
regardless of partisan politics, was never bestowed on Tyler. Former president
John Quincy Adams dubbed Tyler His Accidency and refused to address
Tyler as Mr. President. But Tyler stood on the ground of legitimacy by
remaining steadfast in his interpretation of the Constitution and carrying
himself with a presidential posture. As historian and author for the National
Archives, C. L. Arbelbide, notes in her work Abrupt Transitions, the
president returned all mail addressed to Acting President Tyler unopened.19
By the end of 1841, Tyler accepted the resignations of his entire original
18 Ibid, 5.
19 C. L. Arbelbide, Abrupt Transitions, Prologue, Vol. 32, No., Vol. 32, No. 4 (Winter 2000),
pg. 3.
9


cabinet, and ultimately was expelled from the Whig party over his veto of Whig
sponsored legislation on a bank bill.20
The Tyler Precedent did serve to maintain presidential continuity, not only
in 1841 but again in 1850 for Vice President Millard Fillmore upon the death of
President Zachary Taylor and by Vice President Andrew Johnson after
President Lincolns assassination in 1865. The congressional debate after
Tylers ascension is an excellent example of how partisan politics remained an
obstacle to coping with the problem of presidential succession. Tyler was a
staunch believer in states rights, putting far more Southern Democrats on his
side than the Whigs and Northern Democrats, who believed in a strong and
active federal government. This partisanship and division within each party
over Tylers actions were directly responsible for the lack of any solution to
assuage the concerns felt by the legislators. While no congressional action was
taken, the Tyler Precedent remained as firm as written law in lieu of any other
actual legislation. But it did nothing for solving the larger problems of vice
presidential vacancy or coping with long-term presidential disability. The
precedents invocation less than ten years later is an example of its codification.
When President Zachary Taylor was inaugurated in March of 1849, he
was sixty-five years old. Taylor was a slave-owning Southerner who served
only sixteen months as president. His short term in office witnessed growing
20 Feerick, Failing Hands, 98.
10


tensions over the slavery issue in America. Surprisingly, President Taylor
opposed the spread of slavery into territories desirous of statehood such as
California and New Mexico. He opposed Henry Clays famous omnibus bill,
known as the Compromise of 1850, which included Californias admission into
the Union as a free state to assuage the North, and concessions, including a
stronger fugitive slave law, to placate the South. Taylor believed Californias
admission should not be contingent on so many divergent issues. As Congress
and the nation became more sectionalized over the future of slavery, President
Taylor contracted cholera in July 1850 and died within five days.21
Millard Fillmore became the second vice president to ascend to the
presidency due to his predecessors death. The Tyler Precedent ensured him
legitimacy upon taking office. The Congressional Globe reported no objections
to the letter sent by Fillmore to Congress on 10 July 1850, announcing that, In
consequence of the lamented death of Zachary Taylor, late President of the
United States, I shall no longer occupy the chair of the Senate ... [it is advised]
promptly proceed to the choice of a presiding officer.22 He advised both
houses that he would be taking the oath of office at noon in the chamber of the
House of Representatives. The uncontested transition to a Fillmore
administration illustrates how effective the Tyler Precedent was, especially in
21 Ibid, 98-104.
22 Congressional Globe, 31st Congress, 1st Session, Senate, 10 July 1850, pg. 1363.
11


light of the fierce national divisions over slavery and territorial expansion being
debated in Congress. Unlike Taylor, Fillmore supported the Compromise of
1850, which he signed into law. John Feerick writes, The problem [of slavery
in the territories] which had plagued the nation for several years was thus
settled under Fillmore ... and delayed [civil] war for ten years.23
A glaring problem of the Constitution and the Tyler Precedent, however,
was apparent with the death of Taylor. Not long after the Constitution was
ratified, Congress had passed legislation in 1792 extending the line of
succession beyond the vice presidency to include the Senate President pro
tempore and the Speaker of the House of Representatives. As John Feerick
writes,
The succession of Fillmore left a vacancy in the vice
presidency for a fourth time in less than fifty years.
The Senate promptly filled the post of President pro
tempore on July 11, 1850, electing a Democrat.
From the time of Taylors death on July 9, 1850 to
[Senate President] Kings election, the only available
successor in case of a vacancy in the presidency was
Howell Cobb of Georgia, Democratic Speaker of the
House ... but at age 34, not old enough to be
president.24
Merely extending the line of succession did nothing to alleviate the problem,
especially filling the succession line with members of Congress. The
23 Feerick, Failing Hands, 103.
24 Ibid, 104.
12


Constitutional requirements for members of Congress differ from that of
president. A Speaker of the House, for example, serves in the House of
Representatives. Article 1, section 2 requires anyone elected to the House must
be at least twenty-five years old. According to Article 2, section 1, the
president must be at least thirty-five years old. Conceivably, a House Speaker
could be in the line of succession but not Constitutionally eligible to hold the
office.
The Fillmore ascension, and the precarious situation of not having a
successor beyond Fillmore still spurred no new legislative action on succession.
Having a capable successor is vital, but equally important is a successor who is
in concert with the president and his policies. The president-vice president
dynamic must be a constructive relationship when dealing with presidential
succession.
13


CHAPTER 2
THE PRESIDENT-VICE PRESIDENT
DYNAMIC
My country has contrived for me, wrote John Adams in a letter to his
wife, the most insignificant office that ever the invention of man contrived or
his imagination conceived ... I can do neither good nor evil.1 The American
vice presidency often has been held in the lowest esteem. When Daniel
Webster was offered the nomination, he replied, I do not propose to be buried
until I am dead.2 Former Vice President Theodore Roosevelt stated, I would
a great deal rather be anything, say professor of history, than vice president.3
Benjamin Franklin, when the office of vice president was created at the
Constitutional Convention, suggested the title for the holder of the position as
his Superfluous Excellency.4 Presidents have not often helped the vice
presidency in public opinion or political prowess. During the campaign of
1960, when President Eisenhower was asked if he could provide an example the
Republican nominee, Vice President Nixon, had given that Ike adopted as
1 John D. Feerick, From Failing Hands: The Story of Presidential Succession, (New York:
Fordham University Press, 1965), 67.
2 http://www.vicepresident.com. Famous Quotes about the Vice President, (accessed
1/21/06)..
3 Ibid.
4 Feerick, Failing Hands, 66.
14


policy, the president replied, if you give me a week, I might think of one. I
dont remember.1 President Harry S. Truman, a former vice president, stated,
look at all the vice presidents in history. Where are they now? They were
about as useful as a cows fifth teat.2 While these barbs at the vice
presidency provided ample laughs, at the same time, with the death of a
president, the vice president becomes the single most important person in the
federal government. As Woodrow Wilson, before he became president, wrote
of the vice presidency, his importance consists in the fact that he may cease to
be vice president.3
A very large problem in dealing with presidential succession stems from
the inherent ambiguity in the job description for vice president in the
Constitution. When the Constitution was ratified, the vice president was given
but two responsibilities. Article I, section 3 states, the vice president of the
United States shall be President of the Senate, but shall have no vote, unless
they be equally divided, and, as previously noted, Article II, section 2 provides
for the devolution of a vacant office of president to the vice president. The
founding fathers vagueness on the office of vice president led to many
1 Jonathan Aitken, Nixon: A Life, (Washington, D.C.: Regnery Publishing, Inc., 1993), 284.
2 . Famous Quotes about the Vice President, http://www.vicepresident.com (accessed
1/21/06).
3 Woodrow Wilson, Congressional Government: A Study in American Politics, (New York:
Meridian Books, 1956), 240.
15


awkward situations for the future holders of that position. It was this
awkwardness that ultimately contributed to the Twenty-fifth Amendment.
Until the dawn of the twentieth century, the vice presidency was an enigmatic
position creating uncertainty and indecisiveness that became apparent during
presidential vacancies.
Presidents are little help when it comes to establishing a mechanism with
which to cope with a succession crisis. Whether they should nor not, stated
Representative James G. OHara of Michigan in 1973, they [presidential
candidates] will not... choose their vice presidential candidate to succeed
them. They will choose them to help them succeed.4 Presidential candidates
throughout the history of American partisan politics have combined with the
running mate who will best balance the ticket. What is worse, once they are
elected, too many vice presidents have been kept out of the loop on policy
decisions and diplomatic exchanges.
When President Franklin Roosevelt decided to run for a fourth term, for
example, some Democratic leaders believed the president might not survive the
entire term. The idea of placing then Vice President Henry Wallace in the
White House was, for them, an unappealing option. Roosevelt, as pragmatic
politician, recognized the potential split in the Democratic Party if a vice
4 Arthur M. Schlesinger, Jr., On the Presidential Succession, Political Science Quarterly, Vol.
89, No. 3, pg. 484.
16


presidential candidate riled one side of the Democratic coalition too much. The
progressive Wallace irritated conservatives, especially Southern Democrats.
Party operatives, seeking a middle ground, encouraged the president to accept
Senator Harry S. Truman of Missouri. After some consideration, as historian
David Kennedy noted, Roosevelt agreed that Truman was the senator who
would hurt the ticket the least.5 Roosevelt met with Senator Truman only once
before election day. According to Roosevelt biographer Jim Bishop, in
Franklin Roosevelts Last Year the president asked the candidate what his plans
were for the campaign, Truman answered he would be traveling by airplane
around the country. No, replied Roosevelt, Make it by train all the way.
This time we may need you.6 After the election victory, assistant Secretary of
State for Economic Affairs Dean Acheson visited the president a few days
before his fourth inauguration. Later, he wrote of the visit, We were all
shocked by the presidents appearance. Thin, gaunt, with sunken and darkly
circled eyes, only the jaunty cigarette holder and his light-hearted brushing
aside of difficulties recalled the Franklin Roosevelt of former days.7 In April,
three months into his term, the president died of a massive cerebral
5 David M. Kennedy, Freedom From Fear: The American People in Depression and War,
1929-1945, (New York: Oxford University Press, 1999), 792.
6 Jim Bishop, Franklin Roosevelts Last Year, (New York: William Morrow and Co., 1974),
130.
7 Dean Acheson, Present at the Creation: My Years at the State Department, (New York: W.W.
Norton and Co., 1969), 103.
17


hemorrhage. Harry S. Truman was sworn in as president, having had only two
conversations with Roosevelt. He was now commander-in-chief in world war,
with the power of the atomic bomb being perfected not long after his ascension.
The Roosevelt-Truman dynamic, or lack thereof, is a good example of
the immense void that can exist within the Executive branch if little
communication is shared by the president and the vice president. However, the
dynamic is not limited to public policy. The potential successor must be chosen
carefully. A president should be able to work closely with his vice president
and keep him in the loop on issues and presidential capability.
When Senator John Kennedy ran for president in 1960 he appeared to
be the model of health. His youthful vigor, his endearing and picturesque
family, his entire image of intellectualism-meets-athleticism contributed to the
Kennedy mystique. This charisma played out advantageously in American
media. As journalist and author Theodore White pointed out in his book, The
Making of the President, 1960, if the Constitution follows the flag, it may be
i
argued that modem day [popularity] polling reflects television exposure.8
Positive T.V. exposure was at the heart of the Kennedy aura. Ensuring the
image of strength on that medium was pivotal in the Kennedy camp. The
candidate made sure to reinforce the image with everyone around him. As
8 Theodore H. White, The Making of the President, 1960, (Cutchogue, N.Y.: Buccaneer Books,
1961), 250.
18


long-time friend and aide Kenneth ODonnell recalls in his book, Johnny, We
Hardly Knew Ye, Kennedy stated, Im forty-three years old, and Im the
healthiest candidate for president in the United States. Youve [ODonnell]
traveled with me enough to know that.9 But insistent rumors about Kennedys
failing health consistently surfaced during the primaries, especially as the
Democratic convention neared. In a New York Times article the gripping
headline reads, Johnson Backers Urge Health Test.
Senator Lyndon Johnsons camp had two motivations for doing so. First,
they wanted to make an attempt to alleviate any concerns voters may have had
over Johnsons 1955 heart attack. Johnsons camp also wanted to draw
attention to the rumors that Kennedy was taking cortisone injections. Backers
of Senator Lyndon B. Johnsons presidential candidacy, the article reads,
proposed today a health test for all Democratic contenders.10 The story
attacks Senator Kennedy by asserting, Mrs. Edwards, co-chairman of the
citizens for Johnson asserted that Senator John F. Kennedy of Massachusetts,
the front-runner, had Addisons Disease.11 Mrs. Edwards also contended
that doctors stated Kennedy would not be alive if not for the cortisone
9 Kenneth P. ODonnell and David F. Powers, Johnny, We Hardly Knew Ye, Memories of John
F. Kennedy, (Boston: Little, Brown and Company, 1970), 193.
10 W.H. Lawrence, Johnson Backers Urge Health Test, New York Times, 5 July 1960, pg. 19.
11 Ibid.
19


injections. John Kennedys campaign manager, Bobby Kennedy, is quoted in
the article providing a seething retort. Robert F. Kennedy said that his brother
does not now nor has he ever had an ailment described classically as Addisons
disease. While it was not known at the time, the allegations were accurate.
Kennedy pursued all avenues available to him to maintain the hectic and
physically draining schedule of the presidential campaign and to conceal his
many illnesses. Historian Robert Dallek reports in his book, An Unfinished
Life, During the campaign, he had begun seeing Dr. Max Jacobson ... who
made a reputation for treating celebrities with pep pills, or amphetamines, that
helped combat depression and fatigue.12 13 Kennedy also had a barrage of
medical experts to contradict anything a competing camp might allege about his
health. One supporter of Lyndon Johnson who called for health tests did so,
according to an article in the New York Times, because the reference to Senator
Kennedys ailment [Addisons Disease] came because she objected to his
muscle flexing in boasting about his youth.14 As the Democratic nomination
fell to Kennedy, the candidate turned his eye toward a running mate. It did not
12 Ibid.
13 Robert Dallek, An Unfinished Life: John F. Kennedy, (Boston: Little, Brown and Co., 2003),
398.
14 Lawrence, Johnson Backers, pg. 19.
20


weigh on Kennedys mind that his illness would in any way incapacitate him as
president. This is evident in his vice presidential selection.
Lyndon Johnson had had a heart attack in 1955 and, considering
Kennedys medical background, perhaps Johnson was not the most prudent
choice. Kennedy allowed political necessity to override responsible governing.
In choosing Johnson, Kennedy told Kenny ODonnell, Im not going to die in
office, so the vice presidency doesnt mean anything. If we win, I wont be
able to live with Lyndon Johnson as the leader of a small majority in the
Senate.15 If Johnson was vice president, Kennedy believed, a new Senate
Majority Leader could be chosen who would be more apt to cooperate with the
new administration. Lyndon Johnson, recognizing he would not receive the
presidential nomination, felt his influence would be better felt if he were in the
Executive branch. Theodore White, in his book The Making of the President,
1960, perhaps best sums up the consideration paid to the vice presidency by this
time.
When I arrived in the Johnson suite at about 9:30 in
the morning ... I found a sleepy aide hurriedly
dressing for the days work. The sleepy aide
volunteered: Yes, he supposed Lyndon would take
the vice presidency if it came upLady Bird
Johnson, the Texans wife, felt that the majority
leadership was too strenuous a job for a man who had
15 ODonnell, Johnny We Hardly Knew Ye, 193.
21


had a heart attack; she felt the vice presidency was a
lot better.16
It seems not to have occurred to Mrs. Johnson that, as vice president, her
husband might be propelled into an even more strenuous job.
After his election, President Kennedy faced almost constant threats of
physical incapacitation or death. Robert Dallek notes that Kennedy suffered
from Addisons Disease, arthritis, colitis, prostatitis, and osteoporosis.17 The
osteoporosis from which he suffered created his famously painful backaches,
which were credited to his strenuous duty in World War II in the Pacific. All of
the ailments caused discomfort ranging from mild to severe, but the most
dangerous health problem Kennedy faced was the one he denied the most.
Addisons Disease, according to the website of the Mayo Clinic, can be life-
threatening.18 Cortisone pellets implanted in the thighs were the treatment
most often used to control the disease.
The colitis Kennedy suffered from produced symptoms that included
abdominal pain, anemia, and depression.19 While in office, as Dallek states,
[Kennedys] physicians administered large doses of so many drugs that they
16 White, The Making of the President, 174.
17 Dallek, Unfinished Life, 76-77.
18 http://www.mayoclinic.com (accessed 1/30/06).
19 http://www.colitisfoundation.com (accessed 1/30/06).
22


kept an ongoing Medicine Administration Record, or MAR.20 21 However
Kennedy saw none of these physical weaknesses as potentially debilitating. His
ability to deflect questions about his health as president is evident in one of his
press conferences in 1961. The question was posed, Mr. President, it has been
a long time since we have had a definitive report on your health from the best
possible source. How is your aching back? Kennedy, in his usual witty and
confident manner replied, Well, it depends on the weather, political or
otherwise. Kennedys health became a moot point in late November 1963.
His assassination on November 22, 1963, catapulted Vice President Lyndon
Johnson to the White House.
The mistrust Kennedy felt toward his vice president kept Lyndon
Johnson unaware of the full extent of the presidents health. Kennedys willing
concealment of his health risks is a fundamental flaw in succession. The two
men could have worked more in cooperation than competition during the
Kennedy administration. If there is no relationship between the two top posts
of the Executive branch, no dynamic of trust and respect, the danger of
incongruity could spell a massive shift in policy if one had to step in for the
other. An example of this shift comes from former Kennedy speech writer Ted
20 Dallek, Unfinished Life, 398.
21 John F. Kennedy, News Conference Number 15, State Department Auditorium,
Washington D. C. 11 August 1961. http://jfklibrary.org/jfk_pressconf_menu.html (accessed
10/10/05).
23


Sorenson. Sorenson has often stated publicly that had Kennedy lived, the
extent of Americas involvement in Vietnam would have declined in the late
1960s, not increased. Robert Dallek writes of a conversation between the
president and Senator Mike Mansfield, Kennedy said that he agreed ... on
the need for a complete withdrawal from Vietnam. But I cant do it until
1965after Im reelected.22 With his death, and Johnsons ascension, the
hope for a policy of American extraction from Vietnam vanished as President
Johnson became more and more drawn into the conflict.
The Kennedy-Johnson relationship is just one of many uncooperative
duos in presidential politics. It was not until after the assassination that the vice
presidency received the proper respect it needed. Politics and electoral math
continued to play a role in selecting a vice presidential running mate, but
incorporating the office into the presidents inner circle became acceptable, if
not absolutely necessary. Succession because of death, however, is not the
most complicated predicament vice presidents have been placed in. Kennedys
health risks provided the potential for long-term incapacitation. Until the
Twenty-fifth Amendment, presidential disability was an insurmountable hurdle
in the Executive branch.
22 Dallek, Unfinished Life, 668.
24


CHAPTER 3
THE VICE PRESIDENT AND PRESIDENTIAL
DISABILITY
The precarious health risks President Kennedy faced everyday of his
administration threatened the nation with the prospect of the Chief Executive
suffering a long-term incapacitation. Succession, as established by the Tyler
Precedent in 1841 and reinforced by the subsequent ascensions by Millard
Fillmore in 1850, and Andrew Johnson in 1865 meant the vice president
assumed the office, title, and duties of the president. The finality of death,
though, was the key ingredient for Tyler, Fillmore, and Andrew Johnson. They
commanded the office of president because the elected Chief Executive never
attempted to take his power back. The unresolved question of presidential
disability became apparent in 1881 with the long-term incapacitation of the
president, James Garfield.
President James Garfield was shot in the back as he prepared to board a
train. Unlike previous presidents, Garfield did not die hours or days after the
onset of the disability, but rather he drifted between life and death for eighty
days. During the period of his inability, writes John Feerick, the number of
Garfields visitors was restricted ... only his family and physicians were
25


permitted to see him ... at no point did Vice President Arthur confer with
him.1 The Garfield disability was unprecedented, and the members of his
Cabinet were unsure how to proceed. Vice President Chester A. Arthur,
legally, could not make any decisions on behalf of the president. The Executive
branch was literally a body without a head. Feerick notes, Important matters
such as the handling of foreign affairs and the prosecution of post office
swindlers were neglected.2 3
Compounding the problem was the curious connection between the vice
president and the assassin, Charles Guiteau. When arrested, Guiteau told
police, I did it and will go to jail for it. I am a Stalwart, and Arthur will be
president. The fact that the assassins motivation was to send Arthur to the
White House initially turned public opinion against Arthur. Ironically, the
Tyler Precedent motivated the assassin to remove President Garfield as much as
it would legitimize Vice President Arthur if Garfield died and he had to take
command. Chester Arthur, fearing the appearance of usurpation and being
linked to an assassination attempt, walked a very thin line and moved
cautiously with the Cabinet. When discussion turned to having Arthur assume
1 John D. Feerick, The Twenty-Fifth Amendment: Its Complete History and Applications, (New
York: Fordham University Press, 1992), 8.
2 Ibid, 9.
3 Ibid, 8.
26


the powers of the presidency, the vice president publicly stated he would not act
unless the presidents health changed.
It is at this juncture that succession and the Tyler Precedent became an
obstacle. When Tyler took the oath of office, he became the president, not
temporarily but for the remainder of Harrisons term. If Vice President Arthur
took the oath (the only way anyone knew for him to assume the powers of the
president), and Garfield had a complete recovery, could Garfield take the office
back? Debate about succession grew to a feverish pitch in discussing
presidential incapacitation. An article published in the New York Times six
days after the shooting, still seventy-four days before Garfield succumbed to his
wounds, discussed the lack of a succession law.
It has for many years been the custom in the Senate
for the vice president to vacate the chair before the
end of the session and for a President pro tempore to
be elected. But this was not done at the last session,
and there is no president of the Senate. The House of
Representatives of the 47th Congress has not yet met
and organized, and there is no Speaker. For the
present, therefore, the succession rests on the
Constitution alone, and the Act of 1792 is practically
inoperative.4
The 1792 act, it should be remembered, stated that in the event of a vacancy in
the presidency and vice presidency, the Senate President pro tempore shall act
as president, and the House Speaker would assume the duties if there was no
4 The Presidential Succession, New York Times, 8 July 1881, pg. 4.
27


Senate President pro tempore. As Garfield lingered, and Arthur remained stuck
in Executive branch limbo, there was no Constitutional successor until
Congress convened. The vice president remained in New York for most of the
presidents incapacitation to avoid any appearance of usurping Garfields
authority.
When Garfield finally passed away on September 19, 1881, and Arthur
succeeded to the presidency, it appeared for a time that legislation might be
produced as a result of this prolonged disability. Action would have been
prudent considering the situation that developed upon Garfields death. When
Arthur became president, there was no vice president, Senate President, or
Speaker of the House, in short, no Constitutional successor to the presidency.5
One of Arthurs first acts as president was to write a proclamation calling a
special Senate session so that chamber could elect a potential successor for the
new president. He mailed the letter [from New York] to the White House,
writes John Feerick in his book The Twenty-fifth Amendment, so that if he
were struck down on his way to Washington a Constitutional crisis would be
averted.6 But a divided Congress, coupled with an economic recession,
produced little activity in solving the problem of succession or coping with
disability. Arthurs term ended, and as John Feerick states, With the passing
5 John Feerick, The Twenty-fifth Amendment, (New York: Fordham University Press, 1992), 9.
6 Ibid, 9.
28


of Arthurs administration, interest in solving the problem of presidential
inability faded.7 Thus, the first opportunity for leaders to firmly establish
legislation to solve the concerns they had earlier, stalled because of
Congressional partisan politics. The consequences of this lack of action
appeared twelve years later, in 1893, with the incapacitation of President
Grover Cleveland.
President Grover Cleveland was the only man to serve two non-
consecutive terms. His second term, from 1893 to 1897 was filled with
economic peril. Not long after his inaugural, the Panic of 1893 set in. The
ensuing depression, which lasted four years, was the most severe economic
downturn of the nineteenth century. Clevelands remedy for the slowdown was
to repeal the Sherman Act of 1890, which essentially mandated that the
government would buy a specific amount of silver each month in attempt to
raise the value of the metal, which was competing with gold in the American
monetary system. The inflation that resulted, President Cleveland felt, was
directly related to the Sherman Act, and its repeal would diminish the problem.
The president decided to call a special session of Congress to move on his
proposal. They were scheduled to convene August 7, 1893.8 The president was
7 Ibid, 10.
8 Samuel Eliot Morison, et al, The Growth of the American Republic, (New York: Oxford
University Press, 1980, Volume Two), 179.
29


a heavy cigar smoker, and on May 5, 1893, writes historian Leonard Schlup
in his article Presidential Disability, Cleveland noticed a rough area on the
top of his mouth.9 Dr. Robert Maitland OReilly, the White House physician,
gave President Cleveland an examination. He immediately summoned Dr.
Joseph Bryant, a New York surgeon and professor of surgery at Bellevue
Hospital Medical College, who removed sample tissues and sent them to Dr.
William Welch. Welch determined the growth was malignant and would
require an operation.10 As the tense situation over the economy hovered, the
president decided the worst thing for the nation was for the president to
announce he needed dangerous surgery. Cleveland decided to have the surgery
performed secretly aboard a yacht belonging to a close friend.11
Vice President Adlai Stevenson was kept unaware of the presidents
illness and the surgery. Schlup writes of the efforts to keep the procedure quiet,
The precautions for secrecy were elaborate. On the
evening of June 30, the president boarded the private
yacht anchored in New Yorks East River. Only a
handful of people accompanied him. The officials
included Secretary of War Daniel Scott Lamont...
Dr. John Erdmann, Dr. Joseph Bryant, Dr. Ferdinand
Hasbrouck, a New York Dentist; and Dr. Williams
Keen. The Staff received instructions to keep hidden
9 Leonard Schlup, Presidential Disability: The Case Of Cleveland and Stevenson,
Presidential Studies Quarterly, Volume 9, Number 3 1979. 304.
10 Ibid, 304.
11 Ibid, 304.
30


while the president stayed on deck for a time to
create the impression of the beginning of a leisurely
vacation.12
Though the effort to maintain appearances was impressive, they do not compare
to the extensive effort by the medical team and the White House staff to keep
the surgery quiet. Schlup continues,
The next day, July 1, while the boat slowly cruised in
Long Island Sound, doctors successfully performed
the surgery during an operation lasting thirty minutes.
Keen was a distinguished surgeon who had studied
abroad and served in the Civil War. He removed the
entire left upper jaw and part of the palate. The
growth was a carcinoma. Because the incision
occurred within the mouth, no external scar remained
on the presidents face.13
But the surgery did have its complications. The president continued to lose
weight for some time, showed signs of fatigue, and exhibited acerbity in his
temperament.14 After the surgery, the yacht sailed to Massachusetts, where the
president maintained a summer home. Schlup continues, a second brief
operation on board the yacht took place to eradicate suspicious tissue.
Cleveland then spent the summer recuperating. Dr. Kasson Gibson ...
ultimately fitted the president with an artificial jaw of vulcanized rubber.15 As
12 Ibid, 304.
13 Ibid, 304.
14 Ibid, 304.
15 Ibid, 305.
31


previously mentioned, Vice President Adlai Stevenson was kept out of the loop
on the entire ordeal.
Schlup notes that politics lay behind Clevelands decision to keep the
vice president in the dark. Stevenson did not agree with the presidents stand
against silver: A severe financial panic gripped the nation, and the president
needed to propose legislation to Congress. But Cleveland refused to deal with
his vice president.16 This is an excellent example of the dangers of balancing
the ticket in regards to presidential succession. Had Cleveland died from this
cancerous growth, the new president would have stood in direct opposition to
his predecessors wishes. Fortunately for Cleveland, the surgeries were
successful. Unfortunately, his successful push to repeal the Sherman Act, along
with his assurances that it would alleviate the depression, did not improve the
economy. Ironically, the political consequences of the legislation were his
downfall in his second term, not his health.
Presidential disability occurred again twenty-six year later, in 1919,
with Woodrow Wilsons long-term illness. Again, succession and disability
clashed with the end result of a vice president kept out of the crisis. While
campaigning for the League of Nations after the close of hostilities of World
War I, in 1919, President Woodrow Wilson fell ill and was forced to return to
Washington. About a week later, the president suffered a debilitating stroke,
16 Ibid, 306.
32


paralyzing the left side of his body. From that time, writes John Feerick,
until the inauguration of Warren G. Harding on March 4, 1921, the country
was without the services of an able president.17 The details of Wilsons illness
were kept from the American people, but far more dangerous, the facts also
were concealed from Congress, the Cabinet, and Vice President Thomas
Marshall. In a clear case for the need of either relieving the president of his
duties or for the president to resign, there were no mechanisms in place, and
Wilsons close friend and physician, Cary Grayson, discouraged the latter.
The presidents wife, Edith Bolling Wilson, recounts in her memoir that
Dr. Grayson told her, For Mr. Wilson to resign would have a bad effect on the
country, and a serious effect on our patient. He staked his life and made his
promise to the world to do all in his power to get the treaty ratified and make
the League of Nations complete. If he resigns, the greatest incentive to
recovery is gone.18 Wilson did not resign, and believing he would regain total
ability, Dr. Grayson ordered rest and limited stress to keep him comfortable.
As a result, access to the president was strictly limited, often only to his wife,
Dr. Grayson, and personal secretary Joseph Tumulty.
John Feerick writes, While Wilson lay ill, unable to discharge the
powers and duties of office, attempts were made to provide executive
17 Ibid, 13.
18 Edith Bolling Wilson, My Memoir, (New York: Bobbs-Merrill, 1939), 289.
33


leadership.19 These attempts culminated in Secretary of State Robert Lansing
suggesting to the presidents personal secretary that the vice president be
brought in to take over executive functions. Lansing read aloud the succession
provision to Wilsons personal secretary Joseph Tumulty who responded,
according to his memoirs, I have read the Constitution ... you may rest
assured that while Woodrow Wilson is lying in the White House on the broad
of his back I will not be party to ousting him.20 21 The presidents physician, Dr.
Grayson, informed Lansing that he would oppose any attempt at declaring the
President disabled. Lansing called a number of Cabinet meetings to discuss
governmental operations. As result of his initiative, Wilson fired Secretary
Lansing. Meanwhile, the shroud of secrecy from the White House produced
problems on the economic front. A rumor arose in New York, writes
historian Gene Smith, that the president was dead. At once stock prices began
dropping sharply.22 Wilsons health crisis is the clearest example of the
problem of the Constitutions silence on presidential disability.
19 Feerick, The Twenty-fifth, 13.
20 Joseph Tumulty, Woodrow Wilson as I Know Him, (Garden City: N.Y.: The Literary Digest,
1921), 443-444.
21 Ibid, 444.
22 Gene Smith, When the Cheering Stopped: The Last Years of Woodrow Wilson, (New York:
William Morrow and Co., 1964), 97.
34


Wilsons stubborn refusal to step aside, and the ardent but dangerous
devotion of his doctor, personal secretary, and wife, created an inner circle of
power, which abhorred disloyalty, even when concerned for the national good.
The Wilson incapacity serves as an illustration of the paradox of presidential
disability. Fear is the reason no discussion arose from the Cabinet after
Lansing was fired in regards to coping with disability. As Dr. Grayson
remained steadfast in his public statements that the president was recovering, an
oppositional and hostile Congress did not see a need to approach the issue
through legislation.
The debate did not rise again in the Republican controlled Congress to any
large degree because a disabled Democratic president would give Republicans a
strong opportunity for victory in the next presidential election. Vice President
Marshall was in the same predicament as Vice President Chester Arthur,
fearing the appearance of usurpation. [Vice President] Marshall reportedly
stated, I am not going to get myself entangled with Mrs. Wilson. No politician
ever exposes himself to the hatred of a woman, particularly if shes the wife of
the president of the Untied States.23 Anxiety, secrecy, and partisan politics are
to blame for the lack of action in the event of this disability. The Tyler
Precedent remained the only mechanism to fill a presidential void, even in the
face of the latest and most serious presidential incapacitation to that point.
23 Feerick, The Twenty-fifth, 14.
35


As history shows, presidents such as Garfield and Wilson have often been
unable or reluctant to relinquish power in the face of an incapacitation. This
changed during the Eisenhower administration. The advancement in global
dangers in the 1950s demanded a competent leader always be available. Three
i.
dangerous temporary Eisenhower disabilities raised national discussion on
succession and disability.
36


CHAPTER 4
PRESIDENTIAL CONVALESCENCE
The close of World War II and the dawning of the age of weapons of
mass destruction brought a new era in global warfare. The presidents role as
Commander-in-Chief became more important than ever as nuclear weapons
became central to the nations defense. The election of General Dwight
Eisenhower in 1952 brought to the White House a widely respected leader with
unquestioned military experience. His grandfatherly image was a political
asset, keeping him seemingly above the partisan fray. His vice president,
Richard Nixon, became the legislative connection to Congress in the
administration.
Eisenhower selected Nixon to be his vice president because, as he stated
in his memoirs, I realized that before the election took place I would have
attained the age of sixty-two. I thought we should ... select a vice presidential
candidate who was young, vigorous, ready to learn.1 As vice president, Nixon
had a serious role within the Executive branch. John Feerick writes in From
Failing Hands,
1 Dwight D. Eisenhower, Mandate for Change: The White House Years, 1953-1956, (Garden
City, N.Y.: Doubleday & Co., 1963), pg. 46.
37


President Eisenhower regarded Nixon as a vital
member of his team. Nixon not only was a statutory
member of the National Security Council and a
regular participant in Cabinet meetings, but was also
asked to preside over meetings ... in the presidents
absence.
It was advantageous for both the president and vice president that Nixon
was integrated into the day-to-day workings of the White House, because he
was forced to cope with presidential incapacity three times in his tenure as vice
president. In the fall of 1955, President Eisenhower vacationed in Colorado.
On September 23 he played golf in Denver. He and an entourage enjoyed lunch
at the Cherry Hills golf course. The president recalled in his memoirs, my
choice for luncheon ... consisted of a huge hamburger sandwich generously
garnished with slices of Bermuda onion and accompanied by a pot of coffee.2 3
The group then decided to play another eighteen holes. While playing, writes
John Feerick, he experienced some uneasiness in his stomach which he
attributed to indigestion.4 The president returned to his lodgings and had
dinner. He went to bed about ten oclock. He later recalled,
Some time laterroughly 1:30 A.M., I awakened with
a severe chest pain and thought immediately of my
after-luncheon distress the previous noon. My wife
2 John Feerick, From Failing Hands: The Story of Presidential Succession, (New York:
Fordham University Press, 1965), 212.
3 Eisenhower, Mandate for Change, 536.
4 Feerick, Failing Hands, 213.
38


heard me stirring about and asked whether I wanted
anything. I replied that I was looking for the milk of
magnesia again. Apparently she decided from the
tone of my voice that something was seriously wrong
... she urged me to lie down and promptly called the
White House physician, General Snyder. She
thought I was quite sick.5
The president was having a heart attack. The immediate treatment given to him
by General Snyder, though necessary, compromised Eisenhowers mental
faculties. Eisenhower wrote, [Snyder] gave me some injections, one of which,
I learned later, was morphine. This probably accounts for the hazy memory I
hadand still haveof later events of the night.6 From the moment the
presidents heart attack began, he could be considered to have been
incapacitated. The further fact that he was injected with morphine, and by his
own admission remembers little of the events that followed, illustrated the need
by 1955 for a mechanism to cope with such a disability.
Eisenhowers illness created a difficult situation for Vice President
Richard Nixon. Nixon recalled his feelings in his 1962 book, Six Crises, With
the president gravely ill, the eyes of the nation and of the world would be
focused upon me ... Every word, every action of mine would be more
important now ... because of their effect upon the nation ... and our potential
5 Eisenhower, Mandate for Change, 537.
6 Ibid, 537.
39


7
enemies. This was the first presidential incapacitation since the failing health
of President Roosevelt in 1945. Concerns over who was in charge reverberated
throughout the nation in several-ways, the most damaging of which was
economic. The immediate result can be seen in a New York Times article
written a few days after the presidents diagnosis: Stock Prices Off Sharply;
Loss is Put at $14 Billion. The article stated, In a collapse ascribed to the
illness of President Eisenhower, the stock market yesterday suffered its heaviest
dollar loss in history.7 8 Unlike the incapacitation of Woodrow Wilson in 1919,
full disclosure to the media was given about the presidents health. The stock
market recovered as the president healed, but the market tumble illustrated the
precarious connection between public confidence and able government.
Placed in a delicate position, Vice President Nixon attempted to
maintain stability in the Executive branch while avoiding the appearance of
usurpation. Nixon wrote, I realized that my own position as vice president had
become extremely delicate; my every move during this period had to be made
with caution, for even the slightest misstep could be interpreted as an attempt to
7 Richard Nixon, Six Crises, (Garden City, N.Y.: Doubleday & Co., 1962), 133.
8 Burton Crane, Stock Prices Off; Loss Put at $14 Billion, New York Times, 27 September
1955, pg. 1.
40


assume power.9 Fortunately for the administration and the nation, no
international crises occurred. As the president wrote in his memoirs,
I can be grateful for many things, not the least of
which was the fact that I could not have selected a
better time, so to speak, to have a heart attack ... the
economy was booming, Congress was not in session .
.. [and] there was no new crisis pending in the
world.10
Though there were no cataclysmic events during the presidents convalescence,
Assistant to the President Sherman Adams noted that the months of recovery
left everyone uncomfortably aware of the Constitutions failure to provide for
the direction of the government by an acting president when the president is
temporarily disabled and unable to perform his functions.11 With
Eisenhowers approval, Nixon and the Cabinet instituted a team oriented
approach to the business of government. The president sent a note to Nixon to
reassure him that action by the vice president would not be taken as an insult.
The note stated,
I hope you will continue to have meetings of the
National Security Council and the Cabinet over
which you will preside in accordance with procedures
which you have followed at my request in the past
during my absence from Washington.12
9 Nixon, Six Crises, 134.
10Eisenhower, Mandate for Change, 545.
11 Sherman Adams, Firsthand Report: The Story of the Eisenhower Administration, (NewYork:
Greenwood Publishing Group, 1961), 192.
12 Eisenhower, Mandate for Change, 541.
41


To maintain the appearance that all was functioning seamlessly, the Executive
branch held a Cabinet meeting. Cabinet Meeting Called by Nixon, stated a
headline in the New York Times. President Eisenhowers Cabinet was
summoned today to a Friday meeting at the White House. It appeared to be the
first step toward setting up the mechanisms for conducting government
business during the presidents illness.13 The entire debate about coping with
presidential disability in the mid-twentieth century was stated succinctly by
Nixon in Six Crises when he wrote, Would the president be well enough to
make a decision? If not, who had the authority to push the button?14 The
shock of the heart attack faded, of course, as the president recovered his health.
But in the wake of the incident, conversation about how best to cope with
executive disability remained, instead of fading as it had in the past.
When the president announced his candidacy in 1956 for a second term,
the issue of presidential succession and disability took a back seat to
presidential campaign politics. Democrats, meeting in 1955, agreed out of
respect not to use the presidents health as a campaign issue. A New York
Times article stated, Adlai Stevenson and the two top Democrats in Congress
pledged today that they would not seek to make political capital out of
13 William Blair, Cabinet Meeting Called by Nixon, New York Times, 27 September 1955,
Pg-1-
14 Nixon, Six Crises, 150.
42


President Eisenhowers heart attack.15 In June 1956, however, the issue of
Eisenhowers health again came to the fore.
The president awoke the night of June 7th with stomach cramps. Dr.
Snyder told him to take milk of magnesia, but an hour later the symptoms
continued.16 His morning schedule was cancelled, but relief was not
forthcoming as the day wore on. The president was removed from the White
House on a stretcher, wrote John Feerick, and taken to Walter Reed Hospital.
The public was told that he had had an attack of ileitis and was being taken to
Walter Reed as a precautionary measure.17 Ileitis is an obstruction in the
lower intestines, and in Eisenhowers case required surgery. Richard Nixon
wrote,
On several occasions afterwards [post-surgery], he
pointed out to me that for the two hours he was under
anesthesia the country was without a Chief
Executive, the armed forces without a Commander-
in-Chief. In the event of a national emergency during
those two hours, who would have had the undisputed
authority of act for a completely disabled president?18
The answer, of course, was no one. It was after the second temporary disability
that Eisenhower began to formulate the idea of a mechanism for coping with
15 Democrats Bar Illness Politics, New York Times, 30 September 1955, pg. 1.
16 Feerick, Failing Hands, 233.
17 John Feerick, The Twenty-fifth Amendment: Its History and Applications, (New York:
Fordham University Press, 1992), 21.
18 Nixon, Six Crises, 168.
43


such a circumstance. Nixon wrote, what stands out in my mind today is that
the surgery focused the presidents attention on the legal problems of the
disability of a Chief Executive.19 20 Surprisingly, the intestinal attack had little
effect on the voters. The Eisenhower-Nixon ticket won re-election with fifty-
eight percent of the popular vote, more than the president had garnered in his
first election in 1952. Early in the new term, the president considered some
ideas on how to cope with any disability that might arise. But before any action
could be taken, yet another medical emergency struck the president, this time of
a very serious nature.
By November 1957 the nation faced several crises. In September of that
year the president was forced to order federal troops into Little Rock, Arkansas,
to enforce desegregation of public schools. The Soviets launched the first man-
made satellites, Sputnik 1 and Sputnik 2 on the fourth of October and the third
of November, respectively. National security became a primary concern.
Then, on November 25, 1957, the president suffered a blow to his health.
Nixon recalled the press release given to the public that evening. The
president suffered an occlusion of a small branch of the middle cerebral artery
on the left side, probably caused by a small blood clot or a vascular spasm. It
was a stroke. The condition affected the presidents ability to speak. The
19 Ibid, 167.
20 Ibid, 172.
44


stroke occurred, according to Nixon, at the worst time possible, short of
outright war, for the president to be incapacitated. It was a time of international
tensions. Suffering his third health crisis in as many years, Eisenhower
became frustrated. If I cannot attend to my duties, the president told a group
of confidants, including presidential assistant Sherman Adams, I am simply
going to give up this job. Sherman Adams notified Nixon, you may be
president in the next twenty-four hours.21 22 But again the president quickly
rallied, returning to his full schedule two weeks later.
Eisenhower felt that the danger of his latest incapacitation was enough
to spur real action. When Attorney General Herbert Brownell met with the
president after his third disability, he found Eisenhower very concerned about
his temporary illness. Brownell wrote, in our conversation, he instructed me
to develop an amendment to the Constitution.23 Brownell, after considerable
consultation with scholars, lawyers, and Cabinet officers, drafted an
amendment that looked very much like the Twenty-fifth Amendment twelve
years later. Brownell submitted the plan to Congressional leaders. In his
proposal, he is recorded in the New York Times as stating, In the realities of
this atomic age ... the solution of the problem of continuation of orderly
21 Ibid, 172.
22 Adams, Firsthand Report, 252.
23 Herbert Brownell, Advising Ike, (Lawrence, Kansas: University Press of Kansas, 1993), 274.
45


government in the event a president is unable to act is no longer ... an exercise
in theoretical Constitutional law.24 In this case, however, politics stood in the
way of any congressional action. The Democrats had won control of Congress
and resisted the proposal. Brownell wrote,
The Congressional leaders told me that they rejected
the plan on the grounds that in the present
circumstances the people would be unnecessarily
frightened by the suspicion that President Eisenhower
was more seriously ill than had been disclosed and
because the plan might enhance the political stature
of the vice president, Richard Nixon.25
With the plan thwarted because of Congressional reluctance, Eisenhower chose
a unique route in solving the problem himself. Brownell recalled later, in view
of the gravity of the problem, President Eisenhower worked out a stop gap plan
... by exchanging letters with Vice President Nixon, setting down steps that
were to be taken in the event of his disability.26 Like the failed proposal the
Attorney General provided to Congress, the letter included the temporary
transfer of executive authority to Vice President Nixon, when the vice
president, in consultation with the Cabinet members he saw necessary, felt it
was the prudent thing to do. The preamble to the letter read,
24 James Reston, The Disability Question: An Analysis of Problem and Congress Failure to
Act on Presidential Powers, New York Times, 11 June 1957, pg. 18.
25 Brownell, Advising Ike, 278.
26 Ibid, 279.
46


The president and the vice president have agreed that
the following procedures are in accord with the
purposes and provisions of Article 2, Section 1, of the
Constitution, dealing with presidential inability.
They believe that these procedures, which are
intended to apply to themselves only, are in no sense
outside or contrary to the Constitution but are
consistent with its present provisions and implement
its clear intent.27
The letter, comprised of three sections, proceeded to outline that if he can, the
president would, in light of a disability, temporarily hand authority over to the
vice president to serve as Acting president.28 The contingency for the
possibility that the president could not voluntarily transfer the power is
addressed in the second section of the letter, stating the vice president, after
such consultation as seems to him [the vice president] appropriate under the
circumstances, would decide upon the devolution of the power and duties of the
office and would serve as Acting president.29 30 The final section of the letter
gave the president the final authority to determine if a disability had ended,
and at that time would resume the full exercise of the powers and duties of the
office. The letter was never used during the remainder of the Eisenhower
administration, and there certainly were problems with its creation. As
27 Nixon, Six Crises, 179.
28 Ibid, 179.
29 Ibid, 179.
30 Ibid, 179.
47


historian Marie Natoli pointed out in her work, American Prince, American
Pauper, the agreement was not a legal or Constitutional document, carrying
o 1
the legitimizing weight of neither. Another problem was that the agreement
was only as strong as the relationship between the occupants of the two highest
offices. Eisenhower and Nixon shared a trust that allowed such an agreement
to work, a bond that other presidents and vice presidents might not share.
Nevertheless, the Eisenhower-Nixon letter was an important foundation
for what would become the Twenty-fifth Amendment. Nixon wrote, the letter
established historical precedent. Eisenhower was the first in history to take
cognizance of and act upon a serious gap in our Constitution.31 32 Similar letters
were used by both John Kennedy and Vice President Johnson, and by President
Johnson with both House Speaker John McCormack in 1963 and with
Johnsons vice president, Hubert Humphrey, after the 1964 election.33 The
difference between the Eisenhower letter and Kennedys was that Kennedy
implicitly incorporated the Cabinet in making the decision with Vice President
Johnson in declaring a disability, whereas Eisenhowers letter gave Nixon the
autonomy to decide if any Cabinet members should be consulted. The Kennedy
31 Marie Natoli, American Prince, American Pauper: The Story of the Vice Presidency,
(Westport, Connecticut: Greenwood Press, 1985), 90.
32 Nixon, Six Crises, 179.
33 Feerick, Failing Hands, 229.
48


letter was never used. But, John Kennedys death in November 1963 proved to
be the final motivation needed by Congress deal with presidential and vice
presidential succession, and disability.
49


CHAPTER 5
THE 1792 SUCCESSION ACT
The Constitution left it to Congress to establish the presidential line of
succession if both the presidency and the vice presidency were vacated. The
issue was addressed early in the first Congressional session in December of
1790. The Annals of Congress provides the short discussion on the subject.
In the House of Representatives, Congressman Egbert Benson, a
Federalist from New Yorks third district, presented a bill declaring the officer
who, in case of vacancies both of the office of president and vice president of
the United States, shall act as president.1 But the bill, which did not
specifically name an officer at its introduction, was postponed in order to divert
attention to more pressing problems. The issue of presidential vacancy was not
introduced again until January 1791. On January 10, 1791, the Committee of
the Whole in the House of Representatives, chaired by Federalist Elias
Boudinot of New Jersey, took up the issue again. The first clause of the bill,
as documented by the Annals of Congress, was read, which contains a blank to
1 Annals of Congress, House of Representatives, Is1 Congress, 3rd Session, pg. 1860.
http://memory.loc.gov/cgi-bin/ampage. (03/19/05).
50


be filled up, designating the person who shall act as president.2 In this debate
the first of many issues and concerns in presidential succession and vacancy
arises right away.
Mr. Smith of South Carolina, observed, that by the
Constitution, the vacancy is to be filled with an
officer of the United States. But he conceived there
was a previous question necessary to be determined;
and that was, whether the person appointed to supply
the vacancy should hold the office during the time for
which the president and vice president were elected,
or whether he should hold the office only till a new
election could take place.3
In the ambiguity of Article II, William Loughton Smith, a Federalist from
South Carolina, raised a concern that was never resolved in 1790 and which
carried on well into the twentieth century. Does a new term start when a
presidential vacancy leads to a succession? This question was not answered by
the members in any debate during the First Congress. Instead, the lawmakers
moved on to naming the officer who would serve in the event of a double
vacancy.
Representative William Smith suggested either the Secretary of State,
Treasury, or the Chief Justice should serve as heir apparent. He settled on the
Secretary of State. Representative Samuel Livermore, a Federalist from New
Hampshire, discounted this suggestion.
2 Ibid, House of Representatives, 1st Congress, 3rd Session, pg. 1902.
http://memory.loc.gov/cgi-bin/ampage. (03/19/05).
3 Ibid, 1902.
51


Mr. Livermore observed ... no reference should be
had to the officers which had been mentioned ... that
the present characters, who hold the above offices,
would be entirely out of the question. He had in view
a different person, and that was the President of the
Senate, Pro Tempore.4
The point by Representative Livermore illustrated the early problems in
Congress with answering the succession question. Samuel Livermore was a
Federalist. He objected to the Secretary of State being placed in the line of
succession because the secretary at the time was Republican Thomas Jefferson.
Livermores choice, the Senate President pro tempore, was John Langdon, a
Federalist and fellow New Hampshire resident. As early as the First Congress
the problems in solving the presidential vacancy and succession revolved
around the partisan politics at the time. Party influence would time and again
slow or block any concrete solution to the problem throughout history.
Simply naming an officer to act in the event of a double vacancy was not
the only obstacle in the early debates. Mr. White [an Independent from
Virginia] observed that the Constitution says the vacancy shall be filled by an
officer of the United States. The President Pro Tempore is not an officer...
besides, this will give one branch of the legislature the power of electing a
president.5 The argument made by Representative Alexander White was that
there would be an inherent conflict and a danger that a Senator could occupy
4 Ibid, 1902.
5 Ibid, 1902.
52


both a Senate seat and the office of president. Constitutionally speaking, a
person cannot occupy two governmental positions at the same time, thereby
making the choice of Senate President pro tempore as a potential successor un-
constitutional. He believed the Secretary of State would be far better.
Again, politics played a role in the argument. While Representative
White was of no party affiliation, he was a Virginian, as was Thomas Jefferson.
To make matters more complex, another member, Hugh Williamson of North
Carolina, suggested that the Speaker of the House serve in filling the void.
Williamson offered the Speaker, a Republican like Jefferson, as a compromise.
Speaker Frederick Muhlenberg was a Jefferson sympathizer, but hailed from
Pennsylvania, and was largely felt to be more pro-Northem in his politics.6
Congressman Theodore Sedgwick, a Federalist of Massachusetts, offered still
another choice to be considered. Mr. Sedgwick ... mentioned that the office
of Chief Justice was considered as next to that of president, and, therefore, he
considered him the most proper person to fill the vacancy.7 It should be noted
that the Chief Justice at this time was John Jay, who happened to be a
Federalist. The man considered the father of the Constitution, James
Madison, interjected his opinion of the suggestion of the Chief Justice. Mr.
Madison objected to the Chief Justice, as it would be blending the Judiciary and
6 http://bioguide.congress.gov/biosearch. (06/29/05).
1 Annals, 1903.
53


Executive. He objected to the Senate President. He disregarded the objections
which had been offered against the Secretary of State and showed the
compatibility of the two offices.8 Madisons insistence on the Secretary of
State was no real surprise because of his close relationship with Thomas
Jefferson.
The First Congress did not resolve the issue of presidential succession in
the event of a double vacancy. Partisan politics clearly became an obstacle the
members could not overcome. With the Second Congress, however, progress
was made. Legislation titled, An Act Relative to the Election of a President
and Vice President of the United States, and Declaring the Officer Who Shall
Act As President in Case of Vacancies in the Offices Both of President and
Vice President, was introduced to the full chamber on March 1, 1792. The act
states,
In case of removal, death, resignation or inability
both of president and vice president, the President of
the Senate, Pro Tempore, and in case there shall be
no President of the Senate, then the Speaker of the
House, for the time being shall act as president until
the disability be removed or a president shall be
elected.9
This legislation, commonly referred to as the 1792 Presidential Succession
Act, was never invoked before new legislation in 1886 rearranged the order of
8 Ibid, 1904.
9 Annals of Congress, Second Congress, First Session, March 1,1792, pg. 240. (06/30/05).
54


the line. What was important about the 1792 act was the failure to define what
an inability was or how it was to be determined when a disability was removed.
Nor did it resolve the problem of a successor holding two offices
simultaneously.
The early problem of presidential succession arose from the vagueness of
the Constitution and was compounded by party politics in the First Congress.
When legislation finally was passed, its most blatant shortcoming was the lack
of definition by the lawmakers as to what a presidential and vice presidential
disability was. The extended line of succession merely served as a stopgap in
the event of a crisis and proved not to matter because there was never a double
vacancy after its passage. But double vacancy was not the only problem in
succession. The Madison administration is an example of the 1792 acts
inefficiencies.
President James Madison was inaugurated March 4,1809. Madisons first
term vice president, seventy-two year old George Clinton, died from
pneumonia a year before the end of his term. President Madisons second term
vice president, Elbridge Gerry, died two years into his term. Madison served as
president a combined total of three years without a vice president. Vice
President George Clintons death came three weeks before the start of the War
of 1812. Vice President Elbridge Gerry died November 23, 1814, three months
after the British stormed Washington D.C. and burned the White House,
55


leaving only a shell in smolders. Had President Madison been captured or
killed in the August raid on Washington and Vice President Gerry assumed the
office of president, he would have died three months into his term. To
complicate matters more, the Senate had not yet elected a President pro tempore
at the time of Vice President Gerrys death. The Speaker of the House in 1814,
the third person in the line of succession behind the Senate President pro
tempore, was Langdon Cheves, who was only 38 years old at the time of Vice
President Gerrys death.10 Surprisingly, there was very little debate about vice
presidential vacancies in this era, especially odd considering the Senates
failure to elect a President pro tempore, the next available successor in the 1792
act. The subsequent succession act, in 1886, attempted to remedy the situation.
10 http://www.bioguide.gov, (accessed 10/19/05).
56


CHAPTER 6
THE 1886 SUCCESSION ACT
Before 1886, the only legislation concerning presidential succession was
the 1792 Succession Act, which extended the line beyond the vice president to
include the Senate President pro tempore, and the Speaker of the House behind
the Senate President. Little discussion and no action arose after the Tyler
Precedent was established in 1841. The temporary rise in debate after Tyler
took command of the office of president ended with the next election cycle in
1844. The four years of the healthy President James Polk, from 1845 to 1849,
resulted in a collective slumber of inactivity by legislators who had previously
been concerned with succession. But the 1850s and 1860s would prove to be a
tumultuous time in American history. Attempts at solving succession issues
met stiff resistance because of sectionalism and civil war.
The period of the mid-nineteenth century demanded revision of the
presidential line of succession to ensure the will of the voters was honored. But
slavery, territorialism, and secession served to block any attempts at a solution.
The death of President Zachary Taylor in 1850 was just the beginning in an era
of tragedy for the Executive branch over the next two decades. Democrat
Franklin Pierce, president from 1853 to 1857, lost his vice president, William
57


R. King, one month into his administration. Kings death briefly raised the
query again about succession when an article in the New York Daily News
attempted to elicit public debate. It would thus appear that, by the
Constitution, and the law as it stands, no provision is made for the choice of
vice president except by the people.1 As sectional tensions continued to
mount, however, by 1856, when legislation finally was introduced in regards to
succession, it met fierce opposition in the court of public debate. Democratic
Senator Andrew Butler, of South Carolina, submitted a bill to continue the line
of succession beyond the Speaker of the House to include the Chief Justice and
the entire Supreme Court bench, in the order of their appointments. The
measure ultimately failed in the Senate, but more important was the media
resistance. A New York Daily Times article epitomizes the problems facing
partisan cooperation in passing any legislation coping with the presidency,
What is the motive of Senator Butlers measure? In
the ordinary course of things it is gratuitous and
needless. Has the Senator some extraordinary
contingency in view? Has his bill any connection
with the threatened resistance to the inauguration of a
Republican candidate, or the possibilities of civil
convulsions to result from the reference? It would be
fair to let us know. It is certainly suspicious that the
move should be made now within ten or twelve days
of the adjournment, when we have a president in
lusty health.2
1 The Vacancy in the Vice Presidency, New York Daily Times, 26 April 1853, pg. 2.
2 Presidential Vacancies, New York Daily Times, 7 August 1856, pg. 4.
58


The article failed to mention, however, that Senator Butler was merely acting
on a Senate report submitted by the Committee on the Judiciary.
The Senate had passed a resolution directing the Judiciary Committee to
examine the succession issue. Andrew Butler was chairman of the committee,
but it was a bipartisan report that had the support of both Democrats and
Republicans in the committee. Their findings, according to the Congressional
Globe, were submitted June 26, 1856 as Senate Report 260. The report
concluded the 1792 Succession Act was Constitutional, and, understanding
there may be periods where there was no President pro tempore or Speaker of
the House, it recommends continuing the line of succession after the Speaker
to include the Chief Justice, if he not be presiding over impeachment of the
Chief Executive. Senator Butler merely put the committees findings into the
form of legislation. The 1856 debate and the Judiciary Committees
investigation, serve to depict one of the problems in coping with presidential
and vice presidential vacancy. Never in the debate or the subsequent proposed
legislation by Senator Butler, was the idea put forward that a new vice president
should be nominated, even though that is what the article quoted above in 1853
was advocating. So concerned with the presidential vacancy and the line of
succession, legislators missed the opportunity to propose the idea of filling a 3
3Congressional Globe, 34th Congress, 1st Session, Senate, 26 June 1856.
http://memor.loc.gov/cgi-bin/ampages.html (accessed 1/19/06).
59


vice presidential vacancy, thereby making the rest of the line of succession
moot. With the ability to replace a vacancy in the second highest office in the
Executive branch, technically, Senator Butlers legislation would not have had
to be introduced. This scenario certainly would have been more Constitutional
than the events that arose ten years later after the assassination of Republican
President Abraham Lincoln and the succession of Democratic Vice President
Andrew Johnson.
After the ascension of President Johnson in April 1865, the orderly
exchange likely saved the Union in a time of great peril. The Johnson
succession illustrated yet again the constant problem of a vacancy in the vice
presidency. When Johnson ascended, Congress was not in session. There was
no Senate President pro tempore until a special Senate chamber election the
following month, and no Speaker of the House until they convened and elected
a Speaker in December 1865. From the time Johnson vacated the vice
presidency until almost a month later, he had no Constitutional successor in
Congress should he vacate the presidency. And his succession meant a party
shift from the victorious Republican Party in the election of 1864 to a
Democrat. All of this potential danger, it should be remembered, occurred in
the setting of an ongoing civil war. Initially, even Johnsons greatest enemies
had hope there would be cooperation between the new Democratic president
and a Republican controlled Congress. Republican Senator Benjamin Wade, in
60


an 1867 interview with the New York Times, recalls a discussion he had with
the new president after he took office. In addressing President Johnson after
Lincolns death ... he said I need have no fears; that he would stand by the
men and party that elected him.4 The sentiment would change, of course, in
the face of the difficult reconstruction years after the war ended.
By 1867, President Johnson was a politically isolated leader. Radical
Republicans controlled Congress and felt Johnsons plan for Reconstruction far
to lenient toward the South. In an attempt to strip the president of most of his
authority, Congress passed the Tenure of Office Act on March 2, 1867. The act
essentially dictated that the president could not remove any government official
without the consent of the Senate. The act intended to ensure the president
could not remove any members of his Cabinet, all Lincoln men the president
had kept upon his ascension. After the act passed, Johnson fired Secretary of
War, and ally of Congress, Edwin Stanton. For this violation, impeachment
proceedings began in the House. Johnsons impeachment and Senate trial were
more political retribution than justice. The entire unethical ordeal of the
charges and trial are embodied in the fact that Senate President pro tempore,
Republican Ben Wade, who would have been Johnsons successor if convicted
and removed from office, not only participated in the indictment but voted for
removal as well. All fifty-four members [in the Senate] were present, and all
4 A Talk with Senator Wade, New York Times, 8 November 1867, pg. 8.
61


voted, writes historian Donald Young in American Roulette, even Senator
Benjamin Wade ... professed to see no violation of ethics in doing so. He had
already selected his cabinet.5 It is difficult to speculate, had an initiative for
filling a vice presidential vacancy been passed the decade before, in the 1850s,
as the New York Daily Times had suggested, if Johnson would have been
convicted and removed or dodged the guilty verdict anyway. Interestingly, as
John Feerick notes, after the impeachment episode, Johnson recommended
changing the line of succession to the members of the Cabinet thus preventing
Congress from using the impeachment power to place one of its members in the
presidency.6 Congress paid no attention to the proposal in 1868, but the
suggestion anticipated legislation passed twenty-years later, called the
Presidential Succession Act of 1886.
The 1886 act was a product of the experience of the two previous decades
and the dangers they entailed, especially Lincolns death and the Johnson
impeachment. The next administration, of President Ulysses S. Grant, faced yet
another vacancy. Half way through his second term, in 1875, Vice President
Henry Wilson died after suffering a stroke.7 For sixteen months, the person in
5 Donald Young, American Roulette, 82.
6 John Feerick, Failing Hands, 114.
7 Ibid, 115.
62


line to succeed Republican President Grant was Indiana Democrat Michael
Kerr.8
Six years later, in 1881, the eighty-day incapacitation of President
Garfield confronted the nation with the problem of presidential disability.
When the president was shot, public debate began to address the problem of
presidential vacancy. It is a fact which little note has been taken heretofore,
states the New York Times, six days after Garfield was shot, only one life
stands between General Garfield and an absolute interregnum.9 The article
reminded readers that at the time of the shooting and while Garfield lingered
between life and death, there was no Senate President or Speaker of the House.
In other words, if the president died, Vice President Chester A. Arthur would
have no Constitutional successor.
As Garfields health rallied and declined, and with Congress still not in
session, the Washington Post attempted to reassure the public, stating, judging
from precedent, should President Garfield die, Vice President Arthur thereupon
would take the required oath and enter at once upon his duties. He [Vice
President Arthur] could easily be at the Capitol within hours.10 Once Garfield
8 http://bioguide.congress.gov/biosearch (accessed 12/19/05).
9 The Presidential Succession, New York Times, 8 July 1881, pg. 4.
10 Three Notable Events, Washington Post, 28 August 1881, pg. 2.
63


of the body or mind, temporary or permanent.14 Senator George Hoar, of
Massachusetts, stated in an interview with the New York Times that I do not
think the framers meant a temporary illness, however severe.15 Senator Hoar
did not offer a definition beyond his belief that temporary illness was not an
inability, but it was his legislation, introduced in 1885, that meant to cope with
presidential and vice presidential vacancies. His bill became the 1886
Succession Act.
Successful passage of the Succession Act did not happen solely because
Senator Hoar was a brilliant politician. Discussion of inability and vacancy had
died down with the passing of Arthurs administration in March 1885. The
election of Democrat Grover Cleveland and his running mate Thomas
Hendricks ended the concerns of legislators and citizens, because President
Cleveland had an able successor in Vice President Hendricks. But that would
all change with Hendricks death from a stroke, in November 1885, less than
nine months after taking office. John Feerick wrote,
The sudden death of Hendricks startled leaders of
both parties. Not only was there no available
successor to the president at the time but, since the
Republicans had a majority in the Senate, it was
likely that a Republican would be elected as
President pro tempore when the Senate convened.16
14 Presidential Inability, New York Herald, 15 September 1881, pg. 6.
15 Presidential Inability, New York Times, 15 September 1881, pg. 8.
65


The majority opinion in both the press and the Congress were concerned that
both times there had been a vice presidential vacancy, in the case of Arthur and
now Cleveland, there had been no Senate President and no Speaker of the
House. President Cleveland sent a letter to Congress arguing, the present
condition of the law relating to the succession to the presidency is such as to
require immediate amendment.16 17 18
Senator Hoar introduced his bill, which successfully altered the line of
succession. The bill was published in the Washington Post the day after it
passed the Senate. The bill referred to as the measure introduced by Senator
Hoar, passed the Senate and favorably reported to the House, the article stated.
The new succession line bypassed the Congressional leadership in favor of the
presidents Cabinet instead. The bill reads,
Be it enacted that in case of removal, death,
resignation, or inability of both the president and the
vice president, the Secretary of State, or if there be
none, or in case of his removal, death, resignation, or
inability, then the Secretary of Treasury, or if there be
none, then the Secretary of War, or if there be none,
then the Attorney General... shall act as president
until the disability of the president or vice president
be removed or a president shall be elected.
16 John Feerick, Failing Hands, 141.
17 Congressional Record, 1885.
18 Senator Hoars Bill, Washington Post, 28 November 1885, pg. 2.
66


President Cleveland signed it into law in January 1886. The logic behind using
the Cabinet in lieu of Congress lay in the argument that Congress was not
always in session, therefore elected leadership was inconsistently available to
fill the role of president if need be. It was also felt that maintaining the
presidents party was equally important. A Democratic president would likely
appoint similarly minded men to Cabinet positions, a Democratic Secretary of
State, Treasury, War, Attorney General and so on. The events of 1865, when a
Republican president died and a Democratic vice president ascended, and later
the impeachment of Johnson because of partisan politics served as strong
incentives to alter the line.
It was also felt that Cabinet officials would know, at the time of death or
disability, the desires of the president before the succession occurred. There
was the added insurance in the law that the Cabinet officers had to be confirmed
by a majority vote in the Senate before taking office. Therefore, they faced a
greater representation of the nation as opposed to a Senate President pro
tempore or Speaker of the House, who represented a single state. And there
had not been in the 1792 Succession Act any clear provision demanding that the
Senate President or House Speaker resign their post before taking the office of
president. Debate never settled the question if a member of Congress could
serve his own state or district and provide for the functions of a national leader
as the president. Cabinet officers, it was believed, served the nation as a whole.
67


Objections to the law did not go unstated, however. This bill should not
be permitted to become law, offered one opinion in the Washington Post, it is
undemocratic in principle and under the circumstances utterly absurd.19 Other
objections included, as described by John Feerick, that the 1792 law was
written by the founding fathers and that the president would have the power to
appoint his own successor, which would be contrary to the elective principle of
democracy.20 The 1886 Act remained the law until almost halfway through
the twentieth century. It was never used, of course, but it is important in the
discussion of presidential and vice presidential vacancy and inability because it
provided debate on not only succession, but also the need to maintain a
presidential partys course as dictated by the vote of the people. Lessons from
past successions were beginning to be applied to solving vacancy problems.
The 1886 Act opened up the door for discussion on whether a president
could appoint a potential successor, and whether it was in the spirit of the
Constitution for him to do so. The discussion of incapacity and the relieving a
disabled president of his duties would continue, on a limited basis, with the rise
and fall of elected leaders like McKinley and Wilson. President Tafts vice
president, James Sherman, died five months before the end of his term.
19 The Presidential Succession, Washington Post, 22 June 1882, pg. 2.
20 Feerick, Failing Hands, 146.
68


Congress had not yet convened when President Harding died and the ascension
of Calvin Coolidge occurred. Therefore, the 1886 law remained, at very least, a
stopgap for potential problems in the years after its passage. With the onset of
the era of weapons of mass destruction, at the close of World War II, President
Harry Truman decided the 1886 law was not only outdated, but un-
constitutional as well. At his urging, succession would change again in 1947.
69


CHAPTER 7
THE 1947 SUCCESSION ACT
Shortly before lunch, on Thursday, April 12, writes John Feerick in
From Failing Hands, President Roosevelt fell over in his chair, murmuring I
have a terrific headache.1 Three hours later, President Franklin Roosevelt
was dead from a cerebral hemorrhage. His vice president of three months,
Harry S. Truman, was summoned to the White House immediately. The death
of one president and the ascension of another again spurred legislation that
altered the line of succession and provided another step toward changing the
method in coping with succession and vice presidential vacancies.
If the 1792 Succession Act was meant to maintain democracy in replacing
elected leaders who vacated the presidency with elected members of Congress,
then its legislative successor, the 1886 Act, was meant to maintain cohesion
within the Executive branch of government placing Cabinet officers in the line
of succession. When Vice President Harry Truman entered the White House,
he attempted to ensure both democracy and order in the Executive branch by
realigning the line of succession once again. President Truman's concern was
not Roosevelts disability or the potential for his own in the future. Having no
1 Feerick, From Failing Hands: The Story of Presidential Succession, (New York: Fordham
University Press, 1965) 196.
70


vice president himself, the next in the line of succession was the Secretary of
State. Realizing he could appoint anyone he liked as Secretary, he could hand
pick the next president, should anything happen to him. Being the pragmatist
he was, Truman was uncomfortable with this power to choose his own
successor.
Truman took action on presidential vacancy early, focused on what he
believed to be contrary to the Constitution, a president hand selecting the next
in line. The president wrote in his memoirs,
I felt the law, governing the order of succession [was
undemocratic]... under the Presidential Succession
Act of 1886; the Secretary of State was next in line
after the president and the vice president. Since the
members of the Cabinet are all presidential
appointees, the law gave me the power to appoint my
own successor ... this is a power which I believe no
president ought to possess.
Truman saw the problem of succession as urgent because, upon his taking
office, the next in line to the presidency was a man who, though intelligent and
accomplished, did not meet the criteria Truman felt a potential president should
have. Forty-four year old Edward Stettinius was Secretary of State and had
never held elective office. Believing that changing the line of succession would
be a difficult matter in the midst of the Second World War, Truman chose to
cope with the immediate problem of his potential successor by replacing the 2
2 Harry S. Truman, Memoirs by Harry S. Truman: Year of Decisions, (Garden City: N.Y.:
Doubleday and Co., 1955), 487.
71


next in line, replacing Stettinius with someone who had been a representative in
an elective body, James Byrnes. Truman wrote in his memoirs,
In considering [James F.] Byrnes for this most
important Cabinet post [Secretary of State] a number
of factors influenced me. The first of these was
succession to the presidency. Under the current law,
as matters now stood, the next man in line after me
was Secretary of State Edward R. Stettinius, Jr.
Stettinius, however, had never been a candidate for
any elective office, and it was my feeling that any
man who stepped into the presidency should have
held at least some office to which he had been elected
by a vote of the people.3
So concerned with placing an elected official in the line of presidential
succession, Truman urged Congress to alter the act of 1886, placing members
of Congress in the line again. His choice for heir apparent behind the vice
president was the Speaker of the House. Behind the Speaker would be the
Senate President pro tempore. The president felt by placing elected officials in
the line of succession the spirit of the democratic process would remain sound.
Truman wrote in his autobiography,
I felt that the Speaker of the House, as an elected
representative of the people of his district as well as
the chosen representative of the majority of the
elected representatives of the people, was the proper
man under our form of government to be the next in
line.. .4
3 Ibid, 22.
4 Ibid, 35.
72


Only two months after his succession, Truman transmitted to Congress a letter
expressing his desire to alter the line. A succession bill passed the House on
June 29, 1945, but it failed in the Senate.5 The failure of the bill in 1945 did not
deter Truman. Nor did the legislative defeat quiet the national debate that had
begun. Opposition to the 1886 Act on the grounds that it was undemocratic is
easy to understand. America had just finished fighting a war against fascism.
Democracy, free elections, and respecting the will of the body politic were at
the forefront of American pride. Trumans bill served as a catalyst for
discussion of maintaining the democratic state of the nation. Hope for early
action on the presidential succession bill, wrote Merlo Pusey in an article for
the Washington Post, quickly burned out. Members of the House have gone
home for the remainder of the summer after passing a stop-gap bill that is
anathema to the Senate.6 The reason the Senate voted against the bill was pure
legislative pride. House Speaker Sam Rayburn was a popular man within the
Capitol, but so was Senate President pro tempore Ken McKellar. The Senate,
out of respect for its President pro tempore, chose not to move on the
legislation. Media analysis of the proposed new line of succession was mixed
as well. Supporting the president, one article argued against the Secretary of
5 Ibid, 536.
6 Merlo Pusey, Risking a Regency, Washington Post, 24 July 1945, pg. B5.
73


State serving as successor and allowing the president to choose the Secretary
with succession in mind. The Washington Post argued,
It would be unsatisfactory to make a Secretaryship of
State solely with an eye on the succession. In that
event, Mr. Truman might name a worthy successor
but an inappropriate Secretary. The country needs as
never before a Secretary of State who will devote
himself single-mindedly to the tasks of that
significant office.7
The public debate also created many suggestions that initially seemed
outlandish, but portions of which would prove prophetic after the creation of
the Twenty-fifth Amendment. Interesting legislation introduced by Oklahoma
Democrat Mike Monroney is an example of just one of the many suggestions.
In an attempt to compromise between the two Houses of Congress,
Representative Mike Monroney presented a bill that would fundamentally alter
the Executive branch. The deadlock between the two Houses, states an
article written in the Washington Post, gives special point to Representative
Monroneys plan to leave both the Speaker and the President pro tempore
undisturbed and provide for two vice presidents.8 Monroneys plan calls for
a first vice president who would function as a sort of administrative assistant to
the Chief Executive and a second vice president who would preside over the
7 Presidential Succession, Washington Post, 20 June 1945, pg. 8.
8 Two V.P.s, Washington Post, 21 January 1947, pg. 8.
74


Senate.9 Though this plan seems a bit far-fetched, and never made it to the
House floor for debate, it goes to illustrate how the evolution of the problematic
questions of succession and vacancy were beginning really to be addressed.
The Monroney plan, as described in the Post article, continued, in case of the
death of the president or the first vice president, the second V.P. would succeed
to the administrative role so as to become familiar with the duties and policies
of the president whom he might succeed.10 The Monroney plan pointed out
some flaws with the proposed legislation by President Truman in putting the
Speaker and President pro tempore, two officials who could be left out of the
loop, back in the line of succession. But it also prefaced one of the benefits the
Twenty-fifth Amendment would later provide. The Washington Post continued
in its analysis of the Monroney plan,
In case of disability on the part of the president, his
potential successor should be free to serve
temporarily in the White House, and the Speaker
could scarcely do that without giving up a position
attained through many years of public service in
Congress.11
The idea that a temporary transfer of power in light of a presidential disability
was finally brought into the debate. While the two vice presidents system
9 Ibid.
10 Ibid.
11 Ibid.
75


would clearly not work under the Constitution, and especially with the Electoral
College, Monroneys plan was an excellent precursor to appointing a new vice
president in the event of a vacancy.
Journalist Ernest Lindley felt altering the line of succession to include the
House Speaker in lieu of the Secretary of State to be a democratic abomination.
In his article titled, Succession by Election Best Method, Lindley argued
against either a House Speaker or a Secretary of State attempting to assume the
office of president. But, Lindley believed, if one had to be chosen over the
other, the Secretary of State was the better choice. The method which
Speakers are chosen is so different from that by which presidents and vice
presidents are elected as to be unrelated.12 The Secretary of State, Lindley
argued, in general political outlook has often been closer than the Speaker to
the Chief Executive. This has been most strikingly the case, of course, when
the Speaker has been a member of the opposing political party.13 Lindley
went on to advocate special elections, in the event of a presidential vacancy,
held within three months of the death of the Chief Executive. This slow
process, of course, was not a viable option in the increasingly dangerous
nuclear age.
12 Ernest Lindley, Succession by Election Best Method, Washington Post, 24 June 1945, pg.
B5.
13 Ibid.
76


The 1946 midterm elections did not go well for the Democrats in
Congress. They lost the majority to the Republicans. Truman again introduced
his bill to alter the line of succession to include the House Speaker instead of
the Secretary of State. In a letter to the President of the Senate and the Speaker
of the House, Truman wrote,
On June 19, 1945,1 sent a message to Congress
suggesting that they should give its consideration to
. the question of presidential succession ... A bill...
was introduced in the House and was passed on June
29, 1945. It failed, however, to pass the Senate. It is
my belief that the present line of succession as
provided by the existing statue, which was enacted in
1886, is not in accord with our basic concept of
government by elected representatives of the people.
I again urge the Congress to give its attention to this
subject.14
The Republican Congress was happy to comply. Both Houses passed the
Presidential Succession Act of 1947. Ignoring the political consequences,
Truman put the spirit of democracy above party politics, knowing that if
passed, Republican Speaker of the House Joseph W. Martin was the next in line
to the presidency. An editorial in the Washington Post expressed dismay at the
partisan danger. Noting that in 1945 the Democratically controlled Senate
declined to alter the line of succession, the editorial stated that the [Senate]
change of heart is not difficult to explain. Now the same bill would give the
14 Harry S. Truman, Letter to the President of the Senate and to the Speaker of the House on
Succession to the Presidency, 5 February 1947. http://www.trumanlibrary.org. (accessed
11/17/05).
77


country a Republican president. The political implications were plain in the
almost solid Republican line up and almost solid Democratic opposition.15
Altering the line of succession in the name of democracy is ambiguous.
Ignoring the party elected through succession and allowing the oppositional
party to enter the White House is undemocratic. The public votes for a partisan
platform as well as the person who represents that platform in the form of the
presidential candidate. Truman considered the 1947 Succession Act as a
temporary fix. In his memoirs, he discussed the passage of the bill with some
mixed feelings. Finally the bill passed and became law. I believe some way
should be found to elect a successor to the vice president when he takes over
the office of president.16 The glaring problems of the 1947 Act are best
manifested in the example that occurred sixteen years later, upon the murder of
a seemingly indomitable president, John Kennedy, and the ascension of Lyndon
Johnson.
On November 22, 1963, the vice presidency was unoccupied for the first
time since passage of the 1947 Succession Act. Considerable concern and
debate arose when Lyndon Johnson assumed the presidency. Johnson, who had
suffered a heart attack seven years before, did not have a vice president after he
vacated the office himself. The next two men in the line of succession,
15 Presidential Succession, Washington Post, 29 June 1947, pg. B4.
16 Truman, Memoirs, 536-537.
78


however, illustrated that the 1947 Act did not assuage the dangers of
succession. The House Speaker, John McCormack, was seventy-two years old
and the Senate President pro tempore was eighty-seven. When these
Congressional leaders were chosen, the possibility one of them would have to
ascend to the presidency was not even a remote concern. Immense concern
about presidential succession and disability rose at a peak time in the Cold War.
By the time President Johnson won a term in his own right in 1964, with Vice
President-elect Hubert Humphrey, a capable and respected potential successor,
the entire notion of presidential-vice presidential vacancy and short and long-
term incapacity in the face of the nuclear age would not fade away as it had so
many times in the past. Nor was merely realigning the path of succession to
serve as a stopgap to ensure democracy going to ease lawmakers or citizens in
the 1960s as it had in so many occasions before. Finally, a serious and
determined group of Senators, members of a Judiciary subcommittee, dedicated
themselves to fixing, not just with a bill but a Constitutional amendment, the
mechanism to ensure continuity in the Executive branch.
79


CHAPTER 8
MAKING THE AMENDMENT
Even in light of presidential health crises and the obvious, urgent need
to ensure continuity of presidential authority in the Cold War era, amending the
Constitution to do so proved to be a difficult task. As noted, Eisenhower after
his 1955 heart attack ordered Attorney General Herbert Brownell to draft
legislation to amend the Constitution in regard to temporary presidential
incapacity. The legislation, as described by Brownell in his book Advising Ike,
later became the nucleus of the Twenty-fifth Amendment.1 2 However, the
Congressional leadership in 1955 demurred on any such legislation. As former
Vice President Richard Nixon wrote in 1962, The reason was purely political
and obvious. The Democratic Congressional leaders would not approve any
plan which might put Richard Nixon in the White House before the 1960
election. When John Kennedy, a seemingly healthy and vital young man
replaced Eisenhower, Congress felt even less inclined to act. The Senate
Subcommittee on Constitutional Amendments, chaired by Democratic Senator
1 Herbert Brownell, Advising Ike, (Lawrence, Kansas: University Press of Kansas, 1993), 278.
2 Richard Nixon, Six Crises, (Garden City, NY: Doubleday & Co., 1962), 177.
80


Estes Kefauver, continued to hold hearings on the issue, but treated it as more a
theoretical exercise. No conclusions were reached or legislation passed.
We are very fortunate, Senator Kefauver stated in June 1963, that this
country now has a young, vigorous and obviously healthy president. This will
allow us to explore these problems in detail without any implication that the
present holder of that high office is not in good health.3 The Kefauver
subcommittee moved to send to the full Judiciary Committee a proposal for
further hearings, but the death of Senator Kefauver stalled any action.
However, the complacency of June of 1963 ended on November 22 of that year,
the day Kennedy was killed in Dallas. Lyndon Johnson became president, with
the next person in the line of succession being seventy-two year old House
Speaker John McCormack. The discussion in Congress and in the arena of
public opinion changed from theoretical to a matter of critical national security.
But the politics involved in coping with successor vacancy and presidential
disability still took several years to overcome.
The death of President Kennedy opened discussion on succession. An
article in the New York Times in December 1963 stated, the question of the
presidential succession is a quite different question from that of the president s
inability to serve. Both questions are extremely important and deserve careful
3 Hearings on Presidential Inability Before the Subcommittee on Constitutional Amendments
of the Senate Committee on the Judiciary, 88111 Congress, 1st Session, 1963. http://www.0-
weblexis-nexis.com (accessed 08/09/05).
81


combined consideration now.4 The article is important because it illustrated
that no longer was the debate on two separate issues, vacancy on the one hand
and inability on the other, but two interrelated problems. But a political
roadblock stood in the way of coping with vice presidential vacancy. Speaker
John McCormack was a well-respected member of Congress. But his advanced
age made many feel uneasy about his role as potential successor to President
Johnson. The Speaker was interviewed by the New York Times a month after
Kennedys death and in the midst of loudly voiced calls for succession revision.
The Speaker told the Times he would not interpose the slightest obstacle
should Congress take up a change in the presidential succession law.5 But
some of the proposals made in Congress at the time included the removal of the
Speaker and Senate President pro tempore from the line of succession. The
article continued, at the same time, the Speaker says, he opposes any change
that may remove him from the line of succession, because he believes the
present law is preferable to suggested alternatives.6 It should be noted that
John McCormack had been a member of the House of Representatives since
1928. He voted for and believed in the 1947 Presidential Succession Act. The
Speaker was a formidable obstacle to any legislation pertaining to succession
4 Stopgap in Succession, New York Times, 7 December 1963, pg. 21.
5 McCormack for Succession Law But Would not Obstruct Change, 9 December 1963, pg. 1.
6 Ibid.
82


because he could simply block a vote on the issue on the House floor.
Mollifying the Speaker was one hurdle for the amendment to overcome.
In December of 1963, the Senate Subcommittee on Constitutional
Amendments of the Judiciary Committee had a new chairman, Democratic
Senator Birch Bayh. He moved quickly on the pressing matter of the
presidency. Senator Birch Bayh, stated the New York Times, announced that
he would schedule a full study of the presidential succession7 8 Bayh also
announced his proposed legislation for a Constitutional amendment at the same
time. The New York Times reported, Under the Bayh plan, a vice president
who succeeded to the presidency would nominate a successor as vice
o
president. When Congress convened in January, a flurry of legislative
proposals were submitted to the subcommittee. The New York Times reported
that, Senator Javits proposal calls for.. .[Congress to name] a new vice
president. The House and Senate would make the choice by majority vote in
joint session. The House would thus have 435 votes to the Senates 100.9
Another proposal in the House sponsored by Representative William Ayers
would provide for electing a vice president by the House from a list of three to
7 John Morris, Study of Succession is Planned in Senate, New York Times, 13 December
1963, pg. 1.
8 Ibid.
9 Ibid, 23.
83


five names submitted by the president.10 The important detail to notice in the
proposals offered after the death of Kennedy is that they call for replacing a
succeeding vice president. Previously considered undemocratic, it now seemed
to be embraced by many members of Congress.
The Senate Subcommittee on Constitutional Amendments was gaveled
into session on January 22, 1964. The day before, the American Bar
Association Conference on Presidential Inability and Vice Presidential Vacancy
concluded a two-day conference with a recommendation they submitted to the
subcommittee hearings. The Washington Post published their suggestions.
[T]he group ... urged [a Constitutional] amendment provide that any vacancy
in the office of vice president be filled through presidential nomination.11 The
group also urged a mechanism allowing for temporary transfer of powers and
duties of the president to the vice president. The article concluded, because of
the reputation of many members of the group of lawyers, its recommendations
are expected to carry heavy weight with Congress.12 The witnesses who
testified in front of the subcommittee included seasoned politicians, lawyers,
historians, and political scientists. They included former Attorney General
10 Ibid, 23.
11 James Clayton, Naming V.P. on Vacancy is Proposed, Washington Post, 22 January 1964,
pg. A2.
12 Ibid.
84


Herbert Brownell, Professor James MacGregor Bums, Walter Craig and Lewis
Powell of the American Bar Association, Harvard Law Professor Paul Freund,
succession expert Professor Ruth Silva of Penn State, and former Vice
President Richard Nixon.
The subcommittee first ruled out a few proposals that seemed most
unlikely to succeed in the modem age. For example, one proposal suggested
the decision of presidential incapacitation be left up to a mixed commission
made up of representatives from the Executive, Legislative, and Judicial
branches of the federal government, together with representatives of the
medical profession and the public.13 But it was felt that the hearings by all of
these representatives would take entirely too long in the modem age to be
viable. Professor Ruth Silva pointed out that inability can be more than a
medical problem.14 In casting aside of this proposal, Senator Bayh took the
opportunity to remind his colleagues that an expedited process had to be
included in the amendment. Bayh stated,
There was a time in the history of this great nation
when the army was rolling on horse-drawn caissons.
Perhaps it did not make any difference then whether
the nation had a president who was not able at all
13 Hearings on Vice Presidential Vacancy and Presidential Inability to Govern, Senate
Subcommittee on Constitutional Amendments of the Committee of the Judiciary, 88th Congress,
2nd Session, 22 January-5 March 1964, pg. .134. http://www.gpoaccess.gov/legislative/hob.html
(accessed 08/09/2005).
14 Ibid, 135.
85


times to fulfill all the duties and powers of his office.
But today, with the awesome power at our disposal,
when armies can be moved halfway around the world
in a matter of hours, and when it is possible actually
to destroy civilization in a matter of minutes, it is
time ... we make certain that there will be a
president of the United States at all times, a president
who has complete control.15
The subcommittee kept returning to the Bar Associations suggestions in the
hearings. As testimony went on, it became clear that a majority of those
involved were using the ABAs recommendations, along with the informal
letters from the Eisenhower and Kennedy administrations. Evidence of this is
in the fact that most panelists agreed that the vice president should have a
considerable voice in determining if the president was incapacitated. This
arguably comes from the informal agreement between Eisenhower and Nixon.
It should be recalled that in that agreement, the vice president could,
upon consultation with whomever he saw fit, assume the powers and duties of
the presidency if the president was unable to hand them over himself. The
subcommittee believed the amendment should clearly state that the vice
president should work in accord with the Cabinet in determining if a disability
existed. Stated Professor Paul Freund, [the vice president] should be spared
the task of shouldering the responsibility alone. Leaving aside actual self-
interest, the very appearance of self-interest might impel him to refrain from a
15 Ibid, 173.
86


decision which .. ought to be taken.16 As Professor James MacGregor Burns
argued,
[the vice president] is the worst person to decide ...
inability. Not because he would want to make a grab
for power ... but the opposite, he would hesitate to
take any action that would give an appearance ...
that might be used against him in the next election.17 18
The Cabinet was considered the best possible body to work in concert with the
vice president. Former Attorney General Brownell stated that the Cabinet
would likely be loyal to the president and so would suggest his temporary
removal only if it was truly justified. He felt that using the Cabinet in concert
with the vice president would safeguard the president from persons who are
unfriendly to the president. Public opinion began to swell in favor of the
vice president and Cabinet deciding the ability or inability of a president. In
light of this public approval, the subcommittee determined firmly that the
nation should always have a vice president. Always maintaining an occupant in
the vice presidency, according to Bayh, would ensure an orderly transfer of
authority in the Executive branch .. .19 The rest of the subcommittee agreed.
16 Ibid, 129.
17 Ibid, 115.
18 Brownell, Advising Ike, 278.
19 Senate Hearings, 112. http://www.archives.gOv/research/groups/233.html#233.16. (accessed
09/19/2005).
87


As the amendment took shape, it benefited from the Eisenhower letter to
Nixon and the review by the American Bar Association on the eve of the
hearings. Its final form, as it now appears in the Constitution, was a
compromise of a few remaining concerns felt by some of the subcommittee
members. It was agreed that there would always be a vice president. It was
agreed that presidential inability could be determined by the vice president and
the Cabinet paving the way for a temporary transfer of power to the vice
president to act as president. It was resolved that the president, if believing
he suffered from a disability, could legally and temporarily transfer to the vice
president all the powers and duties of the office of president.20 What was not
resolved in preliminary drafts was the line of succession. The first draft stated,
If, by reason of death, resignation, removal from
office, inability ... there is neither a president nor
vice president to discharge the powers and duties of
the office of president, then the officer of the United
States who is highest on the following list... shall
act as president: Secretary of State, Secretary of
Treasury, Secretary of Defense, Attorney General,
Postmaster General... and other heads of executive
departments as may be established hereafter and in
order of establishment.21
20 Ibid, 229.
21 Birch Bayh, One heartbeat away: Presidential Disability and Succession, (New York:
Bobbs-Merrill, 1968), 127-128.
88