An earlier post answered the question about what would happen if something happens to a presidential candidate during the election process. There, we discussed all kinds of scenarios, ranging from the time prior to the party conventions, all the way up to a death after the candidate takes office. Left unanswered is the thorny issue of what happens if the president becomes incapacitated, due to physical or mental disability.
Considering that we’re talking about the most powerful person in the world, in whose hands rests the biggest nuclear arsenal on the planet, you might think that this is an easily-resolved matter.
Buckle up and prepare for some sleepless nights as you contemplate the precarious nature of presidential succession in case of disability.
In the 1965 book Night of Camp David, author Fletcher Knebel poses the question, “What if the president of the U.S.A. goes stark-raving mad?” The plot centers around a president, whose behavior grows increasingly troubling as he exhibits signs of paranoia, delusions, and irrationality. It spent eighteen weeks on the New York Times Bestseller list.
Without giving away the ending, Night of Camp David concludes with something of a resolution. Oh, if only reality were as easily settled as fiction! In the same year Night of Camp David was released, Congress tried to tackle the question of what to do if the president flipped out. Granted, the terminology was a bit more polite, but the concern was the same as that posed in the book. Ultimately, the matter was framed to answer the question of what to do in the event of long-term presidential disability.
Background and Close Calls
Considering the fact that four presidents were assassinated and four others died of natural causes while in office, it seems rather mystifying that no one addressed this issue sooner. This is particularly disturbing in light of Woodrow Wilson, who suffered a severe stroke in October 1919, yet retained the powers of the Presidency for the remaining fifteen months of his administration. By all accounts, it was First Lady Edith Bolling Wilson who played the primary role in making executive decisions, rather than Vice President Thomas Marshall or any other elected official.
When Wilson was incapacitated, World War I had just ended. Although the country was rapidly downsizing its military, Wilson remained as the Commander-in-Chief of the largest military in the world. During this time, the U.S. military engaged in conflict multiple times, including the deployment of a landing force at Kiukiang, China on March 14, 1920, and another in Guatemala from April 9 to 27, 1920. How much the president was involved and able to comprehend at this time remains a matter of debate.
As the world entered the nuclear age, having a clear-headed Commander-in-Chief became increasingly vital. The need to have a clear mechanism for placing someone at the helm of the Ship of State was desperately needed. An additional concern — although rarely spoken about publicly — was the matter of what to do if the person who held the nuclear launch codes suffered a mental breakdown or became outright insane.
On July 6, 1965, Congress passed the 25th Amendment to the Constitution. It was ratified by the states on February 10, 1967. It addressed the dual issues of presidential disability and presidential succession. How successfully it dealt with these remains to be seen.
The Amendment addresses two types of presidential disability. We’ll deal first with the easy kind: when the president recognizes the disability and cooperates in the transfer of power.
Presidential Disability — The Easy Cases
Section 3 of the Amendment states:
“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”
In other words, if the president knows that he is limited in his ability to fulfill the duties of the office or he anticipates that this is about to happen, he may send a letter to the ranking members of both houses of Congress to that effect. The vice president thereupon assumes the powers of the office as Acting President until the president reclaims those powers by sending a follow-up letter, stating that he’s ready to get back in the game.
On July 13, 1985, President Ronald Reagan underwent surgery to remove a cancerous growth from his colon. He sent a letter to the Speaker and the President pro tempore to confer the authority of the presidency to Vice President George H.W. Bush during that time. Curiously, he took pains to specifically state that he was not invoking the 25th Amendment for this, and Bush was not even immediately aware that the letter had been sent. Bush held the quasi-constitutional authority from 11:28 a.m until 7:22 a.m. the next day, when Reagan sent a second letter, indicating he had sufficiently recovered to resume his responsibilities.
In 1991, Section 3 of the 25th Amendment came close to being formally invoked for the first time. President George H.W. Bush experienced an irregular heartbeat, triggering the possibility that he would need to have his heart temporarily stopped and restarted to normalize it. He indicated he would invoke the 25th Amendment, making Vice President Dan Quayle the Acting President during the procedure, if it was required. Physicians were able to regulate his heart without the procedure, however, so it never came to that.
It wasn’t until 2002 that this provision of the 25th Amendment saw official invocation. The first president to make use of the temporary transfer of power had the distinction of doing so twice during his administration. George W. Bush underwent colonoscopies under general anesthesia on June 29, 2002, and again on July 21, 2007. Vice President Richard (Dick) Cheney was Acting President on June 29, 2002, from 7:09 a.m. to 9:24 a.m. He again assumed the authority of Acting President on July 21, 2007, from 7:16 a.m. to 9:21 a.m.
Presidential Disability — The More Complicated Cases
Fortunately, in the cases mentioned above, the president recognized the need to transfer authority to the vice president and was clearly able to take it back. Suppose the incapacity happened unexpectedly, without an opportunity to voluntarily transfer power?
Section 4 of the 25th Amendment allows the vice president and a majority of the Cabinet to declare the president incapacitated. When this happens, the vice president sends a letter to that effect to the Speaker and the President pro tempore and immediately becomes Acting President. The vice president continues to hold these powers until the president recovers sufficiently to reclaim full authority or until the natural end of the president’s term of office.
It is providential that the need for this scenario has not occurred, unless you count the end of the Wilson administration, as discussed above. In the four cases of presidential assassination, the time between the attack and the death of the president was brief (9 hours, in the case of Abraham Lincoln, and 30 minutes with John F. Kennedy), or the president remained more-or-less lucid during his interim (79 days, with James A. Garfield, and 8 days in the case of William McKinley). Likewise, in the case of the four presidents who died of natural causes, the time between being stricken and succumbing was brief (about 3 hours, with Franklin D. Roosevelt, and a few minutes in the case of Warren G. Harding), or he retained his faculties until nearing the end of his life (31 days for William Henry Harrison and 5 days in the case of Zachary Taylor).
On March 30, 1981, President Ronald Reagan was shot by John Hinckley Jr. A “devastator” bullet came to rest less than an inch from his heart and miraculously did not explode. Reagan underwent emergency surgery and lost more than half of his body’s blood volume before physicians stabilized his condition. Fortunately, he was discharged from the hospital less than two weeks later and made a full recovery.
If fate had played out only slightly differently, Section 4 of the 25th Amendment might have been invoked. If the president had lingered in a coma or in a condition that prevented him from fulfilling his Constitutional duties, Vice President George H.W. Bush would have had to convene a meeting of the Cabinet and get the consent of a majority to allow him to become Acting President. Upon transmittal of a letter to Congressional leaders, Bush would have become Acting Chief Executive unless and until Reagan recovered sufficiently to resume his duties.
Presidential Disability — The Really Tricky Cases We All Cross Our Fingers and Pray Never Happen
Thus far, we have not answered the question we started with: what happens if the president goes stark-raving mad? This is a matter of concern, even if we aren’t dealing with true psychosis. For example, by all accounts, Woodrow Wilson was quite insistent that he was of sound mind and able to discharge the duties of his office. He even encouraged friends to push for his nomination for a third term at the 1920 Democratic National Convention. No one suggests that Wilson was insane, but his judgment was unquestionably impaired.
Regardless of whether it is a matter of a president unwilling or unable to admit to having a disability, or if it is a situation where the president is certifiably loony, there has to be a mechanism for resolving executive authority.
Left unresolved is how this would all play out in the event the President becomes incapacitated, but does not recognize the incapacity or agree with it.
Imagine a scenario where the president loses command of his faculties. For purposes of illustration, assume a Wilson-like situation where the president has a stroke and is incapacitated. Invoking Section 4 of the 25th Amendment, the vice president, with the concurrence of a majority of the Cabinet, declares the president unable to carry out his duties. As previously discussed, the vice president then becomes Acting President.
Now, let’s assume that the president makes a partial recovery, as Wilson did. Upon the president sending a letter to Congressional leadership, full presidential authority returns to him.
Now, let’s also assume that, like Wilson, the president is wrong about his assessment of his mental faculties. Is there any recourse for the nation?
The second paragraph of Section 4 attaches a big “unless” to the resumption of presidential powers. It states:
“…when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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.” (emphasis added)
In other words, if our fictional president in this illustration wrongfully concludes he is up to resuming his responsibilities, the vice president and the cabinet have up to four days to send a follow-up letter, contradicting the president’s assessment of his abilities.
The correspondence would play out something like this:
Vice President and Cabinet: “Dear Mr. Speaker and Mr. President pro tempore — Please be advised that the president is not of sound mind.”
President: “Dear Mr. Speaker and Mr. President pro tempore — Guess what? I’m back to my old self. Thanks for the box of candy and the get-well card.”
(Within Four Days) — Vice President and Cabinet: “Dear Mr. Speaker and Mr. President pro tempore — Umm…. This is really awkward, but…. The president is still as nutty as a fruitcake. (And how come you didn’t send us candy when we were in the hospital?)”
As you might imagine, things are probably getting a bit tense in the West Wing at this point. Who is going to resolve the question of whether the president is fit to resume his duties?
The rest of Section 4 says that under this scenario, Congress will decide the issue. The clock starts ticking as soon as the “This is really awkward” letter is received. If Congress is not in session when this plays out, it must gather within 48 hours. The two houses of Congress must decide within 21 days, if already in session or 21 days after being required to convene if not already in session. If within those 21 days, two-thirds of both houses decide that the president is unable to discharge the duties of the office, the vice president again becomes Acting President. Otherwise, the president continues in office with all powers of the presidency.
Keep in mind that this procedure was put in place to deal with the tricky issue of presidential power in the nuclear age. In light of that, consider the following hypothetical:
8:00 a.m. — The president walks into the Oval Office, and astute staffers notice something is a bit strange about his behavior. For one thing, he isn’t wearing any pants, and for another thing, he insists that everyone address his right elbow as, “His Excellency, Emperor Elbowese II.” The president sits at his desk, carrying on an animated conversation with Emperor Elbowese, before looking up and announcing, “The Emperor and I have decided to declare war on Liechtenstein. Does anyone have the nuclear launch codes? I left them in my pants, and I can’t seem to find them anywhere.”
8:15 a.m. — A quick call to the vice president results in the vice president sending out a call for the Cabinet to meet as quickly as possible.
10:00 a.m. — By some miracle, a quorum of the Cabinet can be rounded up in under two hours. After minimal discussion, the vice president and a majority of the cabinet agree to invoke Section 4 of the 25th Amendment.
11:00 a.m. — Somehow, staffers have kept the president sufficiently occupied that he hasn’t actually ordered a nuclear strike on unsuspecting Liechtenstein. After one of the shortest meetings in the history of the federal government, the VP and Cabinet have approved and sent a letter to congressional leadership, declaring the president is a wee bit indisposed. The vice president, as Acting President countermands the president’s (and his elbow’s) first strike orders. Liechtenstein and the rest of the world breathe a sigh of relief.
11:15 a.m. — The president retires to the second floor of the White House. As he rides the elevator, he looks sharply at his elbow and exclaims, “You’re absolutely right! There’s nothing wrong with us!” When the elevator doors open, he calls out, “Someone bring me my Masters of the Universe stationery. I have letters to write!”
Noon — The Speaker of the House of Representatives and the President pro tempore of the Senate receive the president’s handwritten scrawls on official Masters of the Universe stationery, stating, “After consulting with Emperor Elbowese II, I have decided I am as fit as a fiddle. Kick that interloper vice president out of my office. (I have reason to believe he is a Liechtensteinian subversive, anyway.) Onward to victory!!!! P.S…. I am happy to announce that Emperor Elbowese II has gotten engaged to my left ear, Lady Lobe of Earwaxia. A ‘Save the Date’ announcement will be forthcoming.”
12:15 p.m. — The president returns to the Oval Office, again with the full authority of Commander-in-Chief. He asks, “Did anyone find those launch codes? Liechtenstein has taunted us long enough! They didn’t even send a congratulatory email to Elbowese and Lady Lobe.
Alarmed staffers try to placate the president, while someone makes a frantic call to the vice president.
12:30 p.m. — The vice president hastily calls the Cabinet back in session. Fortunately, the Cabinet members are still in town, so this can be done without much delay. After a very brief discussion, they send a new letter to the Speaker and President pro tempore: “Dear Sirs — Despite his assertions to the contrary, the president has gone stark-raving mad. He persists in his desire to nuke Liechtenstein, and even more alarming, he refuses to wear pants. P.S… Why didn’t anyone give us official Masters of the Universe stationery?”
At this point in the story, who wields the power of the office of President of the United States? Believe it or not, it all rests in the hands of the pantless man who is insistent upon blowing up a tiny European principality and who sincerely believes that his elbow and ear are destined for a life of wedded bliss. The follow-up letter from the vice president and cabinet does not return the VP to the position of Acting President. It simply puts Congress on notice that there is a dispute about the president’s fitness hold office.
Upon receiving the letter from the vice president, the Speaker and President pro tempore must call the House and the Senate into a special meeting. Let’s assume Congress is already in session and can immediately take up the issue. It has up to 21 days to receive evidence and vote. How quickly do you think that will happen?
By way of context, when the Japanese attack on Pearl Harbor began on December 7, 1941, it was 12:55 p.m. in Washington, D.C. It was a Sunday. Congress was summoned to a special joint session for the next day. At 12:30 p.m. on December 8, President Roosevelt addressed Congress in his “day that will live in infamy” speech and asked for a declaration of war. The speech took six and a half minutes. Both houses met in separate sessions, and by 1:10 p.m., each had approved a declaration of war. It passed in the Senate, without opposition, 82-0. In the House, there was only one vote against the declaration, and it passed 388-1. The official paperwork was drawn up, and FDR signed the declaration at 4:10 p.m. that afternoon.
The comparison to the declaration of war is appropriate, because it was, for all intents and purposes, unopposed. There was no need to hold congressional hearings. There was no debate. There certainly were no filibusters. The united action of the Executive and Legislative branches of the federal government happened in a record-setting time.
Now imagine that Congress has to decide the issue of presidential disability. If it happens as quickly as the declaration of war against Japan, and if all the players are in the right place at the right time, theoretically, everything in the above hypothetical scenario could get resolved in seven or eight hours.
The worst-case scenario is that the Cabinet cannot quickly be convened by the vice president, that Congress is not in session at the time, and that partisan politics come into play, resulting in protracted hearings and debate. There could be as much as 27 days (4 days for the VP and cabinet to do the follow-up letter, 2 days to convene Congress, and 21 days to decide the matter) in which our pantless, delusional president remains in the Oval Office, still firmly holding full authority as President and Commander-in-Chief.
If the president insists upon nuking Liechtenstein, he must give the order to do so. There is no red button for him to push. There is a two-man rule for the release of nuclear weapons, so the president’s order would need to be verified by the Secretary of Defense. The purpose of the two-man rule is to confirm that it is, in fact, the president who has issued the order to attack. The Secretary of Defense does not hold veto power over the president’s decision.
In theory, the military Chiefs of Staff would have the authority and obligation to disobey an unlawful order. This is a tricky issue, however, and one that has not been put to the test to this degree. Presumably, if CINCNORAD (the commanding general at NORAD) determined the president’s order to attack Liechtenstein was unlawful, he could refuse to carry out the orders. One could also assume that if the president is truly unbalanced, he would be outraged by this and immediately fire CINCNORAD, replacing him with another officer. It would be hard for CINCNORAD to refuse to relinquish his command based on any alleged illegality of orders in that case.
All of this is to say that we really wish someone would have thought this thing out a little better. In our hypothetical scenario, we can only pray that White House staffers can keep the president sufficiently preoccupied with the logistics of getting Emperor Elbowese and Lady Lobe to meet that he forgets about tracking down those missing launch codes.
And As If We Didn’t Already Have Enough to Worry About…
We should also point out that everything we have discussed rests upon the assumption that the vice president recognizes the president’s disability and acts upon it. The Amendment provides for Congress to establish some body other than the Cabinet to concur in the vice president’s assessment that the president is disabled, but it does not allow for anyone other than the vice president to initiate the process or to step in as Acting President.
This is potentially a big problem. Before the ratification of the Amendment, seven vice presidents died in office, one resigned, and eight succeeded to the presidency. In other words, there were sixteen times when there was no Vice President. The 25th Amendment, for the first time, provided a means by which a vacancy in the vice presidency could be filled. That process requires the president to nominate and Congress to confirm a new VP.
What would happen, however, if the above scenarios played out with the vice president, rather than the president? Curiously, that trifling detail remains unaddressed.
In 2001, Vice President Dick Cheney recognized this deficiency in the Constitution and came up with a partial contingency plan. He was quite cognizant of his own frailty, having suffered three heart attacks before the 2000 campaign and a fourth during the time between the election and the inauguration. He prepared and signed a letter of resignation to be used if he were to become medically incapacitated. He gave it to his counsel with instructions to give it to President George W. Bush and to allow him to decide whether to invoke it.
Cheney’s solution only partially addressed the problem, however. If the VP is incapacitated, or if there is no VP during a time of presidential disability, there is no mechanism for triggering the 25th Amendment.
William Shakespeare wrote, “Uneasy lies the head that wears a crown.” If Shakespeare had lived in the 21st century, he might have added that the rest of us don’t sleep too soundly, either.