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November 22 and the 25th Amendment | SLU LAW

November 22 and the 25th Amendment

 

By Joel K. Goldstein, Vincent C. Immel Professor of Law

 

 

Like April 14, Sept. 11 and Dec. 7, Nov.  22 will long remind us of one of the darkest days in American history. It has for 50 years, ever since that day in Dallas one half century ago when President John F. Kennedy was assassinated. That day ended a life and a promising presidency that was just hitting its stride. The day marked the eighth time in our nation’s history when a presidential death elevated a vice president to the presidency, the fourth following a president’s assassination.                

Fifty years ago our government functioned much better than it does today. In that regard, it is not surprising that the Kennedy assassination prompted Congress to address and remedy some of the most glaring deficiencies in our system of presidential succession.

Although the Constitution’s text alone as it read 50 years ago did not make clear whether a vice president became or merely acted as president upon the death of the incumbent, seven precedents (beginning with John Tyler in 1841) spanning more than 120 years established the first alternative as the governing interpretation so the legitimacy of the succession of Vice President Lyndon B. Johnson was not questioned. After that, the system was riddled with problems.

The Constitution provided no means to fill a vice-presidential vacancy except through the regular quadrennial election, an event that was roughly a year away.  In the meantime, the Presidential Succession Act of 1947 provided, as it still does, that the Speaker of the House of Representatives and President pro tempore of the Senate stood next in line to the presidency. Although succession of either of the men holding those positions would not have changed partisan control of the White House, no one had ever considered Speaker John McCormack, then an old 71, or Senator Carl Hayden (86) presidential timber. Johnson’s history of a prior heart attack gave additional urgency to the caliber of his successor. 

Moreover, the Constitution made no provision for the case of presidential inability. It placed the vice president next in line in case a president was unable to discharge his powers and duties but it did not provide any procedures to make that determination nor did it resolve all doubts as to whether the president would be permanently supplanted if the vice president acted during such a disability.  President Kennedy, like his predecessor Dwight D. Eisenhower, had addressed the problem through a letter agreement with his vice president, but such an arrangement, though helpful, did not have the standing of law.

In the aftermath of Dallas, it was not difficult to imagine contingencies that would have tested the arrangements inherited from the founding fathers. What if Kennedy’s wounds had left him disabled rather than dead? Could Johnson have acted? What if Johnson, who was two cars behind Kennedy in the fatal presidential motorcade, had also been shot?

Eisenhower’s heart attack in 1955 and stroke in 1957 had created renewed interest in amending the Constitution to address presidential inability. Some pieces of a proposed constitutional amendment were evident even before Kennedy was killed. One proposal would have provided procedures to deal with presidential inability and make clear that the president could reclaim powers when able to do so. But it was not progressing.

The Kennedy assassination gave new urgency to that effort. Freshman Senator Birch Bayh, who had assumed the chairmanship of the Senate subcommittee dealing with constitutional amendments, embraced the issue of presidential succession and inability. The American Bar Association convened a task force on the subject including such luminaries as former Eisenhower Attorney General Herbert Brownell, Harvard’s iconic law professor Paul A. Freund, future Supreme Court Justice Lewis Powell, and a recent graduate of Fordham Law School, John D. Feerick, who soon became the leading scholar on the subject, a distinction he retains today.

Bayh and the ABA group made an important addition to the proposed amendment. They added a mechanism to fill a vice-presidential vacancy by presidential nomination and confirmation by the Senate and House of Representatives. That addition recognized the emerging importance of the vice presidency and reduced the significance of the remainder of the succession line. 

The Kennedy assassination dramatized the importance of improving arrangements for handling presidential succession and inability. Yet the momentum it provided would not alone have produced the 25th Amendment to the Constitution. That outcome required an exemplary political effort. Bayh provided dedicated and able leadership, and he engaged others in a bipartisan effort. Various actors were willing to compromise off their own proposals in order to improve upon the unacceptable status quo. The architects of the amendment knew that other problems afflicted our system of presidential succession and inability, yet they recognized that if they tried to address everything a heavier proposal would attract opponents faster than supporters. They preferred to address the most pressing needs rather than embark on a futile quest for a perfect amendment.

In 1965 the House and Senate proposed the Amendment and it was ratified by the required three-fourths of the states two years later. The 25th Amendment has greatly improved America’s ability to handle presidential and vice-presidential vacancy and presidential inability.

That is part of the legacy of Nov. 22, 50 years later.  

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