CONSTITUTIONAL VICES:
Some Gaps In The System Of Presidential Succession And Transfer Of Executive Power

By AKHIL REED AMAR AND VIKRAM DAVID AMAR
Friday, Jul. 26, 2002

For a couple of hours in late June, Vice President Dick Cheney became the Acting President of the United States, as George W. Bush underwent anesthesia for a scheduled medical procedure. The smooth handoff of presidential power from Bush to Cheney and back to Bush occurred pursuant to the Constitution's Twenty-fifth Amendment, which provides a detailed framework regulating various sorts of presidential disability.

But this Amendment did not become part of the Constitution until 1967. Why did it take Americans nearly two centuries to clarify something so important?

The unsettling answer is that both the Framers and later generations of Americans gave rather little thought to the Vice Presidency and certain specific issues involving the transfer of executive power.

The Humble Birth of the Vice Presidency

The very idea of a Vice Presidency was dreamed up in the closing days of the Philadelphia Convention of 1787, and its chief value was as one cog in an intricate electoral college contraption regulating presidential elections.

Delegates worried that after George Washington left the political scene, each state might simply cast all its electoral votes for its own favorite son. But then this scattering of electoral votes would deny any one candidate a majority and thus throw every presidential election into Congress, in which case the executive might become overly dependent on the legislature.

The Philadelphia delegates' ingenious solution was to require each state to vote for two persons, one of whom must be an out-of-stater. This rule would give a boost to national candidates-respected statesmen who might be everyone's second choice after the local favorite son.

When Elbridge Gerry (who, ironically enough, would one day serve as Vice President) complained about this odd office and proposed eliminating it, another delegate candidly responded that "such an officer as the vice-President was not wanted. He was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time."

In light of this history, it is hardly surprising that the Founders' Constitution neglected to specify certain critical details concerning the Vice Presidency and its relationship to the Presidency itself.

The Twelfth Amendment's Revision of the Electoral College

As we have explained before, the original electoral college system quickly collapsed once national presidential parties and informal Presidential-Vice Presidential tickets began to emerge. After the Adams-Jefferson-Burr election of 1800-01, the electoral college was revised by the Twelfth Amendment, which directed states to cast separate votes for the President and the Vice President.

But even the Twelfth Amendment focused far more on the Presidency than on the number two slot. Indeed, critics predicted that the Amendment would diminish the quality of future Vice Presidents, who would no longer be major presidential candidates in their own right, but merely second-fiddles to party leaders.

This criticism proved prescient. So long as Presidents stayed healthy in office-as did the first eight Presidents spanning the Constitution's first half century-the Vice Presidency received rather little attention.

Indeed, for much of American history-around 37 of the Constitution's first 180 years--the country did without a Vice President entirely, yet few seemed to notice. The first vacancies occurred in James Madison's Presidency, when his first term Vice President George Clinton died in 1812 and his second term Vice President Elbridge Gerry died in 1814. Under the Philadelphia Constitution, no mechanism existed to fill a Vice-Presidential vacancy-yet another signal of the low status of the office in early America.

An Acting, or an Actual, President?: The Question of Tyler's Title

At critical moments in American history when Presidents died or became disabled, the cracks in the Founders' Constitution became visible.

The relevant constitutional text of Article II, section1, could be read either way: "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. . ."

Did "the Same" mean the office itself, or merely the powers and duties of the office?

If the former was the case, an ascending Vice President was entitled to the honorific title of "President." (Formal titles mattered a great deal in the old days. George Washington had wanted to be addressed as "His High Mightiness, the President of the United States and Protector of their Liberties," but the First Congress ultimately opted for the less monarchical "Mister President.")

More importantly, if an ascending Vice President indeed became President rather than just assuming Presidential powers and duties, he could claim a President's salary, which was both higher than a Vice President's, and also immune from Congressional tampering under the rules of Article II. In turn, such immunity would enable him to wield the veto pen and other executive powers with greater independence from the legislature than would be the case if he were beholden to Congress for his very bread.

Unsurprisingly, Tyler resolved the constitutional ambiguity in his own favor, claiming that he was indeed the President, and not simply the Vice President acting as President. Following Tyler, later Vice Presidents regularly proclaimed themselves Presidents upon the deaths of their running mates, with Millard Filmore replacing Zachary Taylor in 1850 and Andrew Johnson succeeding Abraham Lincoln in 1865.

What Happens When the President, While Alive, Cannot Serve? The Garfield Question.

When the elected President died, and died quickly--as did Harrison, Taylor, and Lincoln--little beyond title and salary turned on whether a Vice President actually became President. But the next presidential death highlighted more troubling constitutional ambiguities. In 1881, James Garfield was shot by a dissatisfied office-seeker, then lingered for months, waxing and waning in bed. Meanwhile the nation drifted, leaderless.

Why didn't Vice President Chester A. Arthur step in, given that the President was obviously disabled? Partly because of questions raised by the Tyler precedent: If Arthur had assumed the duties of the Presidency, would he thereby become President under the Tyler precedent? Suppose Garfield later recovered, as for a time seemed likely. If Arthur had already become President, would Garfield be out of luck (and out of a job)? If so, Arthur would have in effect staged a coup, and permanently ousted Garfield

Moreover, Article II section 2 neglected to specify who should decide whether Presidential "inability" existed. Garfield alone? Arthur alone? The Cabinet? The Congress? The Supreme Court?

And Garfield paid dearly for his perceived views. Upon arrest, Garfield's assassin blurted out, "I did it and will go to jail for it. I am a stalwart, and Arthur will be President." In his pockets, police found a letter addressed "To the White House" proclaiming Garfield's death a " sad . . . political necessity" to "unite the Republican party," and a letter addressed to Arthur making various recommendations for Cabinet reshuffling.

Although Arthur of course had no ties to this madman, had the Vice President attempted to swoop into power, this might indeed look like a coup d'etat to America and the world.

So Arthur did nothing, and months dragged on with the country effectively without a President. Garfield eventually died, and under the Tyler precedent, Arthur then became President.

In the Nuclear Age, We Cannot Afford to Have the Nation Effectively Leaderless

A similar situation arose in 1919, when Woodrow Wilson suffered a series of strokes that left him practically incapacitated. Once again, the Vice President hung back, in part because of the uncertainty created by the Tyler and Garfield precedents. Once again, the nation endured months without an executive in charge.

But in an age of nuclear weaponry-and now, global terrorism-America can ill afford to be leaderless for long, or to have unclear rules about who is in charge. The Twenty-fifth Amendment, proposed and ratified after JFK's assassination, fills many of the gaps left open by the Founders.

For starters, the Amendment makes clear that when the President dies or resigns or is removed from office, then -and only then--the Vice President does in fact "become President." Otherwise, if the President is merely disabled (perhaps only temporarily) from exercising the powers and duties of his office, then the Vice President may step in and "assume the powers and duties of the office as Acting President" without prejudice to the President's ability to resume his post if and when he has recovered from his disability. That is exactly what Cheney did when Bush was under anesthesia.

The Amendment also provides a clear framework for determining whether the President is in fact disabled, and for how long. This framework specifies the precise roles of the President, the Vice President, the Cabinet, and the Congress in resolving questions about possible disability. The Amendment also authorizes Congress, by statute, to involve physicians and other experts in the disability-determination process.

Yet another provision of the Amendment allows a President, with congressional approval, to fill a Vice Presidential vacancy. Through this Amendment, Richard Nixon named Gerald Ford to the Vice Presidency when Spiro Agnew left office in 1973; and Ford in turn appointed Nelson Rockefeller in 1974 when Ford himself became President upon Nixon's resignation.

Compounding the problem, if the Vice President ever were to be disabled (or if the Vice Presidency were at any point vacant) the Twenty-Fifth Amendment's elaborate machinery for determining Presidential disability will seize up; much of the key decision-making under this Amendment pivots on determinations that must be personally made by the Vice President. Also, the Amendment fails to address certain problems that arise if death or disability occurs after a presidential election but before Inauguration Day.

These flaws could probably be fixed by a simple federal statute-in future columns, we'll detail our proposed solutions-but thus far Congress has ignored these issues. History suggests that Americans are slow to imagine the unimaginable-even after it happens-and slower still to repair visible defects in our legal regime of presidential selection and succession.


Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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