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The Twenty-Fifth Amendment: Its Complete History and Application

The Twenty-Fifth Amendment: Its Complete History and Application

John D. Feerick
Copyright Date: 2014
Published by: Fordham University Press
Pages: 224
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  • Book Info
    The Twenty-Fifth Amendment: Its Complete History and Application
    Book Description:

    Undisputed as the most important synthetic work on the Twenty-Fifth Amendment, this revised edition provides the latest in legal thought regarding presidential succession. This new edition of The Twenty-Fifth Amendment: Its Complete History and Applications updates John Feerick's landmark study with the Amendment's uses in the past twenty years and how those uses (along with new legal scholarship) have changed the Amendment and perceptions of presidential disability in general. In its formulation, the Twenty-fifth Amendment was criticized as vague and undemocratic, but it has made possible swift and orderly successions to the highest offices in the U.S. government during some of the most extraordinary events in American history. The extent of its authority has been tested over the years: During the Watergate crisis, it was proposed that the Amendment might afford a means by which a president could transfer presidential power during an impeachment proceeding, and it was also suggested that the Amendment could authorize a vice president and cabinet to suspend a president during a Senate impeachment trial. Where once presidential disability was stigmatized, today a president under general anesthesia cedes presidential authority for the length of the procedure with little controversy. The Twenty-fifth Amendment is evolving rapidly, and this book is an invaluable guide for legal scholars, government decision makers, historians, political scientists, teachers, and students studying the nation's highest offices.

    eISBN: 978-0-8232-5202-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Introduction
    (pp. ix-xii)
    Joel K. Goldstein

    The publication of the third edition of a book may attest to a degree of commercial success but is otherwise generally not a significant event. That usual rule does not apply to this new edition of John D. Feerick’s workThe Twenty-Fifth Amendment: Its Complete History and Application. Originally published in 1976 and reissued in 1992 with a lengthy new Introduction to cover subsequent developments,The Twenty-Fifth Amendmenttakes its significance in part from the constitutional amendment it discusses and from which it takes its name. The Amendment, which was ratified in 1967, addressed a range of problems dealing with...

  4. Preface to the Third Edition
    (pp. xiii-xvi)
  5. Acknowledgments from the 1992 Edition
    (pp. xvii-xviii)
  6. Foreword to the 1976 Edition
    (pp. xix-xx)
    Birch Bayh

    As this nation celebrates the two-hundredth anniversary of its birth, we should take special note of one unique feature of our great constitutional experiment. Unlike almost any other Western democracy, the United States has never been faced with a serious crisis in the line of succession to office of its chief executive and head of state. Our ability to avoid such a crisis throughout much of our earlier history was, perhaps, largely a matter of luck. Fortunately, we never had to confront the prospect of a double vacancy in the offices of both President and Vice President. Thus, one of...

  7. Preface to the 1976 Edition
    (pp. xxi-xxiv)
    John D. Feerick
  8. I The Problems

    • 1 Presidential Inability
      (pp. 3-24)

      When the framers of the Constitution met in Philadelphia in 1787, they brought with them almost two hundred years of experience with executive succession machinery.² Yet they did not spend much time discussing the subject at the Constitutional Convention of 1787. They seem to have thought they handled the matter adequately by providing for the office of Vice President and by inserting in the Constitution the following clause on presidential succession:

      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...

    • 2 Vice-Presidential Vacancy
      (pp. 25-32)

      From May 29 through September 4, 1787, the framers of the Constitution spent a considerable amount of time on the executive article.² A consensus on a single executive developed early in the Convention, but the method of selecting that executive was not so easily settled. Numerous proposals were advanced, including election by Congress, by the people, and by electors chosen either by the state legislatures or by the people from districts in each state. An election by Congress, for which both the Virginia and the New Jersey Plans of government had provided, was approved by the Convention on a number...

    • 3 Succession Beyond the Vice Presidency
      (pp. 33-46)

      As the framers debated the executive article, they realized that a vacancy could occur in the presidency during the course of a term. Indeed, they remembered situations in America’s past involving the death, resignation, absence, and removal of colonial governors. Fortunately, there had been procedures to handle such contingencies. ¹ In the royal colonies there was an office of lieutenant governor, and a provision was made for either the governor’s council or the senior councilor to assume the reins of government in the event that there was no governor or lieutenant governor. In the early history of the proprietary colonies,...

  9. II The Solution

    • 4 Early Steps to Solve the Inability Problem
      (pp. 49-55)

      During and immediately after the inabilities of Presidents James Garfield and Woodrow Wilson, proposals were introduced in Congress to combat the inability problem.

      In the Garfield period, debate raged over the meaning of “inability,” the status of a Vice President who succeeded in the event of a presidential inability, and the question of who had the power to determine whether an inability existed.² Professor Theodore W. Dwight of Columbia Law School argued that inability was limited to mental incapacity; others said that it applied to any kind of inability, of the body or mind, temporary or permanent, which prevented the...

    • 5 Senate Passage of S. J. Res. 139
      (pp. 56-78)

      Following President Kennedy’s death,*there descended on Congress a flurry of proposals dealing with the problem of presidential inability, most of which also sought to deal with the related problem of presidential succession. The presence of a seventy-two-year-old Speaker (John W. McCormack) and an eighty-six-year-old President pro tempore (Carl Hayden) at the top of the line of succession underscored the imperfections of the 1947 succession law. Neither man had been chosen for his position with an eye toward possible succession to the presidency, and neither was viewed by the public as a person of presidential stature.

      Senator Birch Bayh of...

    • 6 Congress Acts
      (pp. 79-104)

      The failure of the House of Representatives to take any action in 1964 is not surprising, since it was anxious not to do anything that might be interpreted as a slap at its Speaker. With the election of President Johnson and Vice President Humphrey, this possibility, for all practical purposes, no longer existed.*The momentum for a solution was quickly reinforced by Johnson himself in his State of the Union message of January 4, 1965, in which he promised to “propose laws to insure the necessary continuity of leadership should the President become disabled or die.”² Two days later S....

    • 7 Ratification
      (pp. 105-107)

      The Amendment was ratified by the necessary thirty-eight state legislatures on February 10, 1967, and formally proclaimed the Twenty-Fifth Amendment to the Constitution at a White House ceremony held on February 23, 1967.² During the ratification period no serious opposition to the proposed amendment developed.*By the end of 1965, thirteen states had ratified it, and by one year after its submission thirty states had ratified. In several states, confusion about the meaning of the Amendment briefly delayed the ratification efforts. A South Carolina Law Review articlethat criticized certain features of the Amendment, particularly Section 2, was distributed to...

    • 8 An Analysis of Sections 1, 2, 3, and 4 of the Amendment
      (pp. 108-122)

      In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

      This Section specifically confirms the Tyler precedent whereby a Vice President becomes President when there is a vacancy in the presidential office because of the President’s death.² It also extends the precedent to cover vacancies in the presidency caused by resignation and removal after an impeachment.³ In any of these cases, the Vice President takes the presidential oath⁴ and serves as President for the remainder of the unexpired term.⁵ The contingency of “inability” is removed entirely from this...

  10. III Implementations of the Solution

    • 9 The Resignation of Spiro T. Agnew
      (pp. 125-134)

      On November 7, 1972, Richard M. Nixon and Spiro T. Agnew received more popular votes for President and Vice President than any other candidates in American history. Less than two years later, both had resigned their offices, and Gerald R. Ford and Nelson A. Rockefeller had become President and Vice President by virtue of the Twenty-Fifth Amendment. Although it is beyond the scope of this book to detail the unique events leading to the fall of Nixon and Agnew,*a summary of certain of these events is necessarily set forth in order to place in context the accessions of Ford...

    • 10 The Substitution of Gerald R. Ford
      (pp. 135-157)

      Speculation about a new Vice President to replace Agnew began weeks before his resignation. In September 1973, in anticipation of Agnew’s resignation, three major congressional committees began to study secretly the process by which a vice-presidential vacancy would be filled.² It is not surprising that, at about the same time, various names were mentioned in the press as possible replacements. Those who figured most prominently in the September speculation were former Texas Governor John B. Connally,*who had recently joined the Republican Party after serving briefly as President Nixon’s Secretary of the Treasury; New York Governor Nelson A. Rocke feller;...

    • 11 The Resignation of Richard M. Nixon and Succession of Gerald R. Ford
      (pp. 158-166)

      The confirmation of Gerald Ford as Vice President suggested to some the solution to the tangle of Watergate.² While Agnew was next in line for the presidency it was difficult for many congressmen to consider removing Nixon. Moreover, during the period when the vice presidency was vacant after Agnew’s resignation, Nixon remained secure, since it was unlikely that a Democratic Congress would risk the political consequences of appearing to “steal” the White House by installing Democratic Speaker Carl Albert in the presidency. With Ford’s selection as Vice President, however, there now existed an attractive alternative to Nixon. It is not...

    • 12 The Installation of Nelson A. Rockefeller
      (pp. 167-189)

      On August 6, three days before Nixon’s resignation, Melvin Laird, a close adviser to Ford, predicted flatly that Nelson Rockefeller would be Ford’s choice as Vice President.² When questioned about Laird’s statement on August 7, Ford replied that it was premature to discuss a vice-presidential successor.³ This did not stop political commentators from speculating, however, and Rockefeller, George H.W. Bush, Elliot Richardson, Melvin Laird, and Senators Howard Baker, Hugh Scott, and Barry Goldwater were all named as front-runners for the post.⁴

      Following his swearing-in as President on August 9, Ford told congressional leaders that he would nominate a Vice President...

    • 13 The Uses and Non-Uses of Section 3
      (pp. 190-204)

      In the presidential administrations running from Ronald Reagan to George W. Bush, the inability provisions of the Twenty-Fifth Amendment were invoked, considered seriously, and discussed with the public.

      On March 30, 1981, just seventy days into his tenure, President Ronald Reagan exited the Washington Hilton Hotel after delivering a speech to the Building and Construction Trades Department of the AFL–CIO. On his way to his limousine, Reagan smiled and waved as he passed a crowd of reporters who were standing behind a security rope. Mike Putzel, an Associated Press reporter standing with the other reporters, shouted, “Mr. President!” in...

  11. IV Continued Interest and Efforts to Change

    • 14 Congressional Action
      (pp. 207-220)

      The terrorist attack on the World Trade Center on September 11, 2001, was unprecedented in its tragic impact on the lives of innocent Americans. It ushered in an era of threat to the security and well-being of the nation. Following the devastation on American soil, many efforts were designed to anticipate and meet danger before it struck. Within a year a new Cabinet department was established, the Department of Homeland Security, and not long after that Congress commenced hearings on the subjects of “Ensuring the Continuity of the United States Government: The Presidency” and the “Presidential Succession Act of 1947.”...

    • 15 Symposia, Scholarship, and Commissions
      (pp. 221-253)

      The Twenty-Fifth Amendment has enjoyed tremendous popularity, if one is to judge by the media depictions of the Amendment with different subplots, and the books, articles, magazine features, and newspaper articles regarding it. Its presence in the Constitution as highlighted by the appointments of Gerald R. Ford and Nelson A. Rocke feller, and its relationship to the nation’s well-being and security have contributed strongly to the attention it has received. In terms of that attention, the number of serious efforts that have been made to improve the system of presidential succession by commissions, academic institutions, and a bipartisan continuity-in-government commission...

    • 16 Representation of the Twenty-Fifth Amendment in Popular Culture
      (pp. 254-262)

      One way of ascertaining changes thatmightneed to be addressed in the area of presidential succession is through exploring popular culture. Media, most particularly through theater and television, provide a lens on what populates the collective imagination of the public.² As William Baker said in his fascinating article “Presidential Succession Scenarios in Popular Culture and History and the Need for Reform,” “[b]y looking at the issue of presidential succession through the lens of the popular imagination, we can begin to see what in the nation’s laws needs changing.”³

      The media offers several depictions of when the Twenty-Fifth Amendment is...

  12. V An Evaluation

    • 17 Appraisal
      (pp. 265-290)

      In any appraisal of the Twenty-Fifth Amendment, one must start with the function it played in shaping the extraordinary events of 1973 and 1974. As Representative Peter W. Rodino stated at the 1975 review hearings on the Twenty-Fifth Amendment before the Senate Subcommittee on Constitutional Amendments:

      Had there been no amendment, not only would the Nixon and Agnew resignations still have left the nation without a nationally elected executive, but the uncertainty and partisan divisions which would have been inherent in the operation of the succession statutes might have threatened the very constitutional process which ultimately preserved our institutions. Or,...

    • 18 Recommendations
      (pp. 291-296)

      In early writings, first for theFordham Law Reviewin 1963 and 1964, and then inFrom Failing Hands, this author took aim at laying out ideas on the subject of presidential inability and the vice presidency. Before arriving at these views, I considered political arrangements in colonial America, the succession provisions of the early state constitutions, the debates at the Constitutional Convention of 1787 and in the state ratifying conventions, and then the enormous history that developed in the area of presidential inability and with respect to the vice presidency. I benefited greatly from the congressional debates and hearings...

  13. Appendixes

    • Appendix A Section-by-Section Development of the Twenty-Fifth Amendment
      (pp. 299-305)
    • Appendix B Constitutional Provisions on Succession
      (pp. 306-308)
    • Appendix C Statutory Succession Laws
      (pp. 309-312)
    • Appendix D Presidential and Vice-Presidential Vacancies
      (pp. 313-314)
    • Appendix E Times During Which the Speaker, the President pro tempore, or Both Were from a Party Different from the President’s
      (pp. 315-316)
    • Appendix F Rule Number 9 of the Republican Party
      (pp. 317-317)
    • Appendix G Selected Sections of the Charter and Bylaws of the Democratic Party
      (pp. 318-319)
    • Appendix H Letter from President Lyndon B. Johnson to House Speaker John W. McCormack
      (pp. 320-337)
    • Appendix I Schedule of Gerald Ford for August 9, 1974
      (pp. 338-339)
    • Appendix J Twenty-Fifth Amendment Memo Prepared for President Gerald R. Ford
      (pp. 340-350)
  14. Notes
    (pp. 351-398)
  15. Bibliography
    (pp. 399-414)
  16. Index
    (pp. 415-424)