The Contemporary Presidency: The Twenty Fifth Amendment: Recommendations and Deliberations of the Working Group on Presidential Disability
The Framers of the Constitution addressed the issues of presidential disability and succession in the document they wrote in Philadelphia in 1787 but they did so in ambiguous and uncertain language. Article II, section 5, states that "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." Two daunting problems emerged from this wording. First, it is not clear whether the words "the same" refer to the presidential office itself or to the powers and duties of the presidential office, an important distinction (Feerick 1992, 3). If the office passes to the vice president, he/she becomes president of the United States; if the powers and duties of the office are transferred, the vice president becomes acting president while the president continues to hold the office. Although the debates at the constitutional convention suggest strongly that the Framers preferred an acting presidency by the vice president rather than an actual succession to the presidential office (Ferrand 1911, 495), the Constitution itself neglects to make this clear. Further compounding the problem was that in 1841, after President William Henry Harrison became the first U.S. president to die in office, Vice President John Tyler's insistence that he had become president, and not simply acting president, of the United States, was accepted by Congress and the country. This created a powerful precedent supporting vice presidential succession to the office itself (Goldstein 1995, 522). The second problem arising from constitutional ambiguity is that the Framers unwisely placed together in the same sentence of the document three permanent and irreversible reasons for presidential separation from office (death, resignation, and removal) with one that is temporary and possibly even fleeting (inability). Because they failed to define "inability" or indicate how it might be determined, the constitutional configuration they adopted contributed to understandable reluctance by presidents to admit any inability to discharge the powers and duties of their office because they feared that if they did so, the result would be the same as if they permanently vacated it. The vice president would become president and they were uncertain whether they would be able to regain the office when their inability ended. Their reluctance was most unfortunate, because many presidents have suffered debilitating--although often well-concealed--illnesses while serving as the nation's chief executive. John Adams remained away from the capital for more than six months while trying to recover from the effects of probable hyperthyroidism (Ferling and Braverman 1998, 83). Madison suffered from a high fever and was delirious for almost a month, being described by some of his aides as deranged (Brandt 1961, 210). Jackson was afflicted with pulmonary hemorrhages, excruciating headaches, and shortness of breath. William Henry Harrison succumbed 30 days following his inauguration after developing viral pneumonia (Marx 1960, 113-14, 131). Cleveland underwent two concealed surgeries for cancer of the jaw while on board a yacht that traveled slowly up the Hudson River, procedures not disclosed until 1928, more than 30 years after he left the White House (Post and Robins 1992, 7-9). During the twentieth century, Woodrow Wilson suffered a massive stroke that paralyzed his left side and made his speech labored and indistinct, but the White House at first described his condition as a digestive upset (Smith 1964, 91). Harding suffered a heart attack while traveling from Vancouver to San Francisco but his White House physician publicly attributed his illness to crabmeat poisoning (Ferrell 1996, 15). …
Can the Twenty-Fifth Amendment Deal with a Disabled President? Preventing Future White House Cover-Ups
Presidential infirmity, accompanied by a failure to fully inform the public, has been stamped indelibly on our history during the past two hundred years. Fourteen of the eighteen American presidents in the twentieth century had significant illnesses while in office.(1) Presidents also have faced physical threats leading to incapacity and death. Of the eight presidents who died in office, four were the victims of bullet wounds. From 1789 to 1958, there were eight assassination attempts against presidents; from 1963 to 1994, there were ten attempts, one successful. The threats are increasing in number.(2) Among the presidents in this century, Warren Harding, Woodrow Wilson, Franklin D. Roosevelt, Dwight Eisenhower, John F. Kennedy, and Ronald Reagan all had illnesses that were either concealed from the American people or underreported.(3) In response to Eisenhower's demand for a mechanism whereby a disabled president might transfer power temporarily to the vice president, the Twenty-fifth Amendment to the U.S. Constitution was passed by Congress in 1964,(4) was ratified by the states, and became the law of the land in 1967.(5) Its central purpose was to preserve cognitive competence in the White House at all times by ensuring that a sick or injured president, incapable of decision making in a crisis, will be temporarily relieved of the burdens of office.(6) A second goal was to forestall concealment of presidential disability by making the transfer of power to the vice president temporary, thereby assuring the president that he could reclaim office once he was able to do so. John D. Feerick, the most knowledgeable historian and legal scholar of the Twenty-fifth Amendment, observes, "Since its adoption, the amendment has been implicated at least five different times and has proven its utility in providing for a quick and efficient transfer of presidential and vice presidential power."(7) Elsewhere, however, ` states that "the amendment worked quite well in handling the presidential succession crises of 1973 and 1974" (dealing only with section 2 on replacement of the vice president) but that it "did not work as it was intended in 1981 and 1985" (involving the important sections 3 and 4 on disability).(8) These two statements contradict each other; the generalization of a "quick and efficient transfer" of power cannot be equated with the failure to invoke it when President Reagan was disabled by John Hinckley's bullet in 1981.(9) Feerick contends that the fiascoes of 1981 and 1985 (when Reagan had surgery for colon cancer) "do not reflect a basic weakness in the amendment" but rather "were born out of political considerations."(10) Can there be any doubt that such considerations will be operating at full steam whenever the possibility of presidential disability arises? How can we be sure that politics will not block the implementation of the Twenty-fifth Amendment in the future, at a time when the nation requires a strong, rational leader in full command of his intellectual and cognitive faculties? Senator Birch Bayh, the architect of the Twenty-fifth Amendment, has himself deplored the fact that sections 3 and 4 have not worked as the framers intended.(11) The amendment's central problem is threefold. First, the issue is deeply embedded in a political culture where those who surround the president and are closest to his aberrant behavior or disabling illness are dependent for their positions and prestige on keeping him in office.(12) Second, a political judgment of disability by the vice president and the Cabinet must be based on a sound medical determination of impairment of such a degree that it impedes the president's ability to discharge some or all of the duties of office. Third, a mechanism for providing this type of unbiased, accurate information on the president's health never has been formally addressed. (To the extent that it has been considered, primary responsibility has been placed on the White House physician, who is enmeshed in a profound conflict of interest. …
Judicial politics in Britain: Patrolling the boundaries
This study considers judicial policy‐making in Great Britain by noting the peculiarly British institutional restraints on judicial action of parliamentary sovereignty, the resulting subordination of all courts to the legislative branch and the absence of a codified charter of rights or constitution. Though there is no judicial power to annul legislative or executive actions, British courts and judges still play a small, but significant, role in policy‐making through the common law and, in particular, through judicial review of adminstrative actions. A written bill of rights would likely draw courts further into the the political arena and politicise the appointment of judges.