Dallas
It was 1964, the year after the Kennedy assassination in Dallas. The Warren Commission was doing the grim work of determining how an American President was shot down. Lyndon Johnson, sworn in as President on the tarmac of Dallas’s Love Field with a bloodstained Jackie at his side, governed without a Vice President. John McCormack of Massachusetts, the seventy-one year old Speaker of the House, was next in line for the Presidency. But there was no provision for replacing a Vice President
It was a year of the Presidential election and the passage of the Civil Rights Act. And it was the year when the critical early decisions were made that mired the United States in the Vietnam War. But a few members of the Senate, led by Democrat Birch Bayh of Indiana, were looking at how our Constitution could be improved. They were studying the Presidency, and more specifically, how our nation could replace the President.
Replacing the Vice President
The first question was easy: how to replace a Vice President. In the original Constitutional times it didn’t seem so important (Hamilton – “John Adams doesn’t have a real job anyway”). But in modern times holding a dual role, a job like the Speakership and being next in line, was complicating. It was essential to be able to replace a Vice President, whether that person resigned or died, or was elevated to the Presidency. So they took the standard Constitutional language for executive appointments, cabinet members and the like, and expanded it. The President could nominate a candidate for Vice President, and with two-thirds approval of both the House and the Senate, a new one could be appointed.
Presidential Disability
Then there was the second grim possibility. What if Kennedy had somehow survived the Dallas attack but was incapable of serving as President. There was no mechanism for removing a President, temporarily or permanently, short of a resignation or impeachment and conviction. There were the historic examples. Woodrow Wilson’s stroke left him disabled for the last months of his Presidency and his wife, Edith, the actual Chief Executive. And more recently, Dwight Eisenhower was disabled for months after a massive heart attack.
This was the nuclear age, just two years after the Cuban missile crisis when the world stood at the brink of destruction. The President was the critical decision maker. There was no time for long-term rehabilitation like Wilson or Eisenhower. It was the age of a thirty-minute window from launch detection to nuclear holocaust.
So they established a provision that allowed the President to temporarily step aside from the office. With a simple signed statement, the President could transfer the powers of his office to an Acting President, the Vice President. With that same simple statement, the President could resume the powers of office. And if the President was incapable of signing such a statement, then the Vice President and the cabinet could, by majority vote, replace him with the Vice President.
Who are the “Cabinet” for the purpose of determining this decision? They are the “principal heads of the executive departments”, the Vice President and the “Secretaries”. While many Presidents “elevate” other offices to Cabinet status, only those who are in the actual line of succession to the Presidency are part of the process of replacing the President.
Nuclear Dilemma
Then there were the deep, dark fears of the 1960’s at the advent of the nuclear age, the era of Mutual Assured Destruction. What if a single person, a B-52 Bomber pilot, or the General in charge of the Missile Battalions, or the President, cracked under the pressure of controlling the “nuclear button”? They are all human, what if they somehow lost their minds, and determined to start a nuclear war?
For the pilots and missile launchers, the military developed the Fail Safe system. It took more than one person, on the bomber, or the submarine, or in the missile silo, to launch an attack. For most there were also secondary controls from central command that could prevent the launch even if both the “key-holders” tried. And for the Generals and Admirals in charge, there were layers of command, with no one person in total control.
Except, of course, the President of the United States, the Commander-in-Chief.
The authors of the Twenty-Fifth Amendment to the Constitution absolutely contemplated a President who cracked under the pressure. The process of temporary removal was quite specifically designed to provide an alternative to a President who lost his mind.
Coup d’état
But it also created a quick path to a “coup d’état”; an overthrow of the duly elected leader of the nation. So they put a process in place, where the real President could appeal to the Congress to get the job back. If the President was replaced, he could petition Congress. They are required to begin deliberations within forty-eight hours, and make a determination within twenty-one days. To keep the elected President from regaining office, it would take two-thirds agreement of both the House and the Senate.
All of the contingencies were studied. They thought about a President who simply had to have a medical procedure requiring anesthesia (George W. Bush), or one needing emergency surgery (Ronald Reagan). They contemplated a Vice President who resigned (Agnew), or through death, removal or resignation, was elevated to the Presidency (Ford). And they also thought of a President who was no longer capable of serving in office.
The Twenty-Fifth Amendment to the Constitution passed Congress by two-thirds vote in the summer of 1965, and gained the necessary three-fourths approval of the states in early 1967.
Affirmative Duty
The Twenty-Fifth Amendment created a duty for the Vice President and the Cabinet. If the President of the United States was unfit for office, it wasn’t enough for them to simply to look away, or even resign. The Amendment created an affirmative duty for them to contemplate replacing the President, if, in their judgment, he no longer had the capacity to govern. The powers of the Presidency are now too awesome to allow even a few days grace for someone unfit for office.
There are twelve days left to the inauguration of Joe Biden and Kamala Harris. We can only hope the Vice President Pence and the remaining Cabinet members (two have resigned) are aware of their duties.
