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Article Excerpt
What does history tell us about how the Twenty-Fifth Amendment has worked when presidents have been temporarily incapacitated? The results are spotty, mixed, and, to a large degree, unknown, because the decision whether to invoke the amendment proceeds from the advice of the White House counsel. That office operates under the radar screen and out of public scrutiny much of the time. Additionally, because administrations consider continuity of government plans a matter of national security, and classify them, they are unavailable to the public (Associated Press 1996). What evidence we have of presidential consideration of the operation of the Twenty-Fifth Amendment comes from personal recollections of the principal players and from secondary sources. To the degree that a pattern of behavior emerges, it is that counsels often are lonely (and sometimes, lone) advocates for strict adherence to the spirit and letter of the amendment, while the presidents they serve, urged on by their political advisers, are loathe to crank up the temporary power transfer machinery because (1) it makes a president appear weak; (2) it provides the vice-president with a new and unparalleled source of visibility, stature, and authority; and (3) it opens up the possibility for denying the president the opportunity to return to office when the disability ends.
What we see from examining this interplay between White House counsels, on the one hand, and presidents and their political advisers, on the other, is a rich illustration of the fundamental dilemma that White House counsels face in many areas of their responsibilities--being caught in the crosshairs of law and politics. There may be few other matters as bedrock as determining who shall lead the country; in cases of the Twenty-Fifth Amendment, a decision to start the process of a temporary power transfer may initiate a journey into uncharted waters. That is a heavy burden for anyone to bear, when advising a president that such a time has come.
The Role of the White House Counsel in Presidential Incapacitation
This is an area where the lack of an institutional memory is atrocious. The White House should not have to reinvent a process each time the POTUS (President of the United States) has surgery. (B. Culvahouse, White House Counsel, 1987-1988, on the recurring issue of temporary presidential medical disability; Borrelli, Hult, and Kassop 2000, 6.)
There's a Twenty-Fifth Amendment, that's all--we didn't inherit much on that but we did develop a big decision tree thing which worked when (President Bush) had his thyroid problem and I think has worked since. That was a big contribution to the Counsel's office, the work that we did to put that all together.... I don't think we involved anybody outside the White House but I sat down and did it with the Chief of Staff ... (and) the White House doctor.... What happens: If X then go to Y; if Z then go back to A. It's just a decision tree on how to handle disability and it worked like a charm faultlessly, perfectly when he went into the hospital (C. Boyden Gray, White House Counsel, 1989-1993; Borrelli, Hult, and Kassop 2000, 6.).
As the lawyer to the institution of the presidency, the White House counsel's primary responsibility is to insure that actions taken by a president and his administration are consistent with the Constitution and laws of the United States. As a member of the White House staff, the counsel is also sensitive to the political needs and policy preferences of the chief executive who he or she serves. Consequently, it is not uncommon for the counsel to confront situations where political needs conflict with legal/constitutional requirements or, at the very least, where navigating a route that respects both may be ambiguous and challenging. When it comes to the role of the counsel in interpreting and advising the president on implementation of the presidential disability pro visions of the Twenty-Fifth Amendment, it is inevitable that this classic (and uncomfortable) conflict will arise, because there is no more sober occasion for determining both adherence to constitutional prescriptions during an unexpected event and assurance of a president's continued political viability (or, short of that, assurance of continuity of service in the office of the presidency). The counsel is squarely in the middle of that dilemma, and it is his or her judgment that sets the tone for the activity that unfolds in its wake.
The Paradox of the Twenty-Fifth Amendment
The story of the use of the Twenty-Fifth Amendment is a paradoxical one. The amendment was ratified in 1967, after more than a decade of efforts to provide for a formal mechanism to guide the continuity of the presidency when the chief executive's state of health renders him temporarily incapable of governing. The Framers established in Article II of the Constitution that the vice-president would automatically succeed to the presidency in cases where that office was left vacant due to the chief executive's "removal ... death, resignation, or inability to discharge the powers and duties" of the office, and they allocated to Congress the function of providing by law for succession when vacancies existed in both the presidency and vice-presidency. What the Framers neglected to do, however, was to acknowledge that presidential "inability" was a condition distinct from removal, death, or resignation, in that it holds out the promise that a president might return to the office when the disability ends. It is this matter of determining how a temporary transfer of power would unfold that Sections 3 and 4 of the Twenty-Fifth Amendment address, prompted by a history of presidents with health problems of varying severity, but propelled most directly by the three illnesses suffered by President Eisenhower and by his urging that there be a clearer--and constitutionally based--process to be used in instances of temporary presidential medical disability. (1)
The mission to propose such a constitutional amendment fell to legal professionals in the Eisenhower administration, and it has been the role of White House counsels subsequently to advise presidents when matters arise that call for consideration of the use of the Twenty-Fifth Amendment. The counsel's task is an unenviable one, viewed suspiciously by presidents who are wary of any suggestion that they should relinquish, even briefly, the reins of power. The paradox that has surfaced is that with a constitutional procedure for an orderly, temporary transfer of power now firmly in place, the will to use it at the times when it is most needed is weak, at best, and almost nonexistent, at worst.
Practices for Handling Presidential Incapacitation Prior to the Twenty-Fifth Amendment
Presidents are mortal, they get sick from time to time, and they may need a doctor's care, hospitalization, or, perhaps, heavy medication that can impair or interfere with judgment and decision making. This is not a twenty-first century phenomenon, and presidents from Washington forward have had to resolve how to address their respective illnesses in office, while a few vice-presidents have found themselves, upon the death of the president, in an entirely new office, sometimes, with little advance notice.
Some early examples of presidential incapacitation and unanticipated vacancies occurred during the administrations of Garfield, McKinley, and Wilson. The assassinations of Garfield and McKinley in 1881 and 1901, respectively, left the nation hanging (for eighty days in Garfield's case and for eight days in McKinley's) and vice-presidents uncertain. In Garfield's case, Vice-President Chester A. Arthur, after conflicting debate by the Cabinet, refused to step in and "act" as president, worried that such conduct would be interpreted as usurping the presidency and taking it away permanently from Garfield, even if the chief executive recovered (Olson 1981, 100; Silva 1951, 56). With McKinley, Vice-President Theodore Roosevelt was sufficiently confident that the president would recover that he went to the Adirondacks a few days after the shooting, and did not arrive back to Washington to take the oath of office until twelve hours after McKinley's death (Olson 1981, 101). Woodrow Wilson's lengthy illness and inability to perform his duties during the last year of his presidency also created the uncertainty as to whether Vice-President Thomas Marshall should assume the powers and duties of the presidency, but Marshall, similar to Arthur before him, refused to do so, fearing that such action would be interpreted as displacing Wilson. Secretary of State Lansing called Cabinet meetings in Wilson's absence, and for that action and for suggesting that Marshall might consider taking over from Wilson the president ultimately forced his secretary of state to resign (Olson 1981, 101; Hearings 1958, 19). The long and unsettling experience under Wilson prompted Congress to make some efforts to address the issue of presidential incapacitation arising from medical disability, but none succeeded at that time, and the issue went unattended from 1921 until the 1950s.
By the middle of the twentieth century, the nation had experienced the death in office of Franklin Roosevelt, Eisenhower's three serious illnesses, and the shock of assassination of a young president in mid-term. All three of these incidents contributed to the mounting realization that some authoritative mechanism was needed...
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