Tuesday, February 19, 2013

Six Crises 5

When I was reading Stephen Ambrose's Nixon: The Education of a Politician, I wanted to write about the questions that President Dwight Eisenhower's heart attack raised in terms of who would run the Executive Branch when the President wasn't entirely able to perform his duties.  I thought that the Twenty-Fifth Amendment to the U.S. Constitution handled such questions, but I was surprised to learn that this Amendment was not even in the Constitution prior to 1967.  Thus, there were questions about what to do when Eisenhower had his heart attack.

The topic of the Twenty-Fifth Amendment was also in my mind because I had watched the second season of the show 24, in which the Vice-President and the cabinet, under the Twenty-Fifth Amendment, decided that President David Palmer was unable to perform his duties, and therefore they removed him.  Palmer was able-bodied, but there was a conspiracy to frame him as incompetent so that Palmer would be removed and a war could be launched.  I wondered if the Vice-President and the cabinet were legally able to remove the President like that.

I didn't get around to writing about the Twenty-Fifth Amendment when I was reading Ambrose, for there were other topics that I wanted to cover at the time.  Fortunately, however, my reading of Richard Nixon's 1962 book Six Crises has given me a new opportunity to write about the Twenty-Fifth Amendment.
Before the Twenty-Fifth Amendment, people were left with Article II, Section 1, Clause 6 of the U.S. Constitution.  It states the following:

"In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and 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."

According to Nixon on page 139, this left questions unanswered.  The Vice-President could take over if the President died, resigned, or was unable to do his job.  But, as Nixon states, this does not stipulate who decides when the President is unable to do his job, whether the Vice-President merely assumes the office of the Presidency or also the Presidency's powers and duties, and how a President who "recovers his health can then recover his office" (page 139).  Moreover, Nixon states that a Vice-President during the President's temporary state of incapacity could not be Commander-in-Chief of the armed forces, sign bills into law, nominate judges, or "decide high policies of government" (page 139). 

In short, prior to the Twenty-Fifth Amendment, there wasn't adequate constitutional guidance about what would happen to the Executive Branch were the President to be temporarily incapacitated.  And so people were confused about what to do.  When President Woodrow Wilson was incapacitated with a stroke and his Secretary of State conducted Cabinet meetings, Wilson was outraged and got the Secretary of State to resign.  My impression from my reading about Eisenhower is that nothing dramatic happened during Eisenhower's incapacity, but, after Eisenhower got well, he wrote out a policy of what would happen were the President to become sick and incapacitated, and it was up to his successors to either adopt his policy or to come up with one of their own.  In Six Crises, which was published five years before the Twenty-Fifth Amendment, Nixon urged for there to be a constitutional amendment that would handle this issue.  He thought that it would be best to propose it when the President was healthy and able, otherwise the discussion of the Amendment could get political (i.e., the President is sick, and such-and-such faction doesn't want that particular Vice-President to act as President!). 

From my reading of this article and some of the links that it provides, the Twenty-Fifth Amendment appears to establish the following procedures were the President to be temporarily incapacitated:

----The President would write to the President Pro Tempore of the Senate and the Speaker of the House, saying that he is unable to discharge the office of President.  While he is incapacitated, the Vice-President serves as Acting President, which means that the Vice-President has the office, powers, and duties of the Presidency.  The President can get his office and powers back by writing again to the President Pro Tempore and the Speaker of the House.

----Section 4 of the Twenty-Fifth Amendment states: "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 the Speaker of the House of Representatives 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."

This was what the Vice-President and the cabinet on 24 were following in removing President Palmer.  I think that one reason that Section 4 says what it does is that an incapacitated President may not be able to write to the President Pro Tempore of the Senate and the Speaker of the House, since he may be too incapacitated, and so the Vice-President and others can write to the President Pro Tempore and the Speaker, instead.

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