The Twenty-fifth Amendment : its complete history and applications

448 Pages·2014·66.95 MB·English

by  Feerick

THE TWENTY- FIFTH AMENDMENT
Third Edition

THE TWENTY-F IFTH
AMENDMENT
ITS COMPLETE HISTORY AND APPLICATIONS
Third Edition
John D. Feerick
Fordham University Press
New York 2014
Copyright © 2014 Fordham University Press
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Library of Congress Cataloging- in- Publication Data
Feerick, John D.
Th e Twenty- fi fth Amendment : its complete history and applications /
John D. Feerick. — Th ird edition.
pages cm
Includes bibliographical references and index.
ISBN 978- 0- 8232- 5200- 8 (hardback) — ISBN 978- 0- 8232- 5201- 5 (paper)
1. Presidents— Succession—United States. 2. United States. Constitution.
25th Amendment. I. Title.
KF5082.F44 2014
342.73’062—dc23
2013021229
Printed in the United States of America
16 15 14 5 4 3 2 1
Th ird edition
With deep gratitude to my wife, Emalie, and in loving memory
of my brother, Donald J. Feerick, and Leonard F. Manning,
my law school professor and mentor

Contents
Introduction by Joel K. Goldstein ix
Preface to the Th ird Edition xiii
Ac know ledg ments from the 1992 Edition xvii
Foreword to the 1976 Edition xix
Preface to the 1976 Edition xxi
I The Problems
1. Presidential Inability 3
2. Vice- Presidential Vacancy 25
3. Succession Beyond the Vice Presidency 33
II The Solution
4. Early Steps to Solve the Inability Problem 49
5. Senate Passage of S. J. Res. 139 56
6. Congress Acts 79
7. Ratifi cation 105
8. An Analysis of Sections 1, 2, 3, and 4 of the Amendment 108
III Implementations of the Solution
9. Th e Resignation of Spiro T. Agnew 125
10. Th e Substitution of Gerald R. Ford 135
11. Th e Resignation of Richard M. Nixon and Succession of
Gerald R. Ford 158
12. Th e Installation of Nelson A. Rocke fel ler 167
13. Th e Uses and Non- Uses of Section 3 190
viii Contents
IV Continued Interest and Efforts to Change
14. Congressional Action 207
15. Symposia, Scholarship, and Commissions 221
16. Repre sen ta tion of the Twenty- Fifth Amendment in
Pop u lar Culture 254
V An Evaluation
17. Appraisal 265
18. Recommendations 291
Appendixes
A. Section- by- Section Development of the Twenty- Fifth
Amendment 299
B. Constitutional Provisions on Succession 306
C. Statutory Succession Laws 309
D. Presidential and Vice- Presidential Vacancies 313
E. Times During Which the Speaker, the President
pro tempore, or Both Were from a Party Diff erent
from the President’s 315
F. Rule Number 9 of the Republican Party 317
G. Selected Sections of the Charter and Bylaws of
the Demo cratic Party 318
H. Letter from President Lyndon B. Johnson to House
Speaker John W. McCormack 320
I. Schedule of Gerald R. Ford for August 9, 1974 338
J. Twenty- Fifth Amendment Memo Prepared for
President Gerald R. Ford 340
Notes 351
Bibliography 399
Index 415
Introduction
Th e publication of the third edition of a book may attest to a degree of commercial
success but is otherwise generally not a signifi cant event. Th at usual rule does not
apply to this new edition of John D. Feerick’s work Th e 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, Th e Twenty-
Fifth Amendment takes its signifi cance in part from the constitutional amendment
it discusses and from which it takes its name. Th e Amendment, which was ratifi ed
in 1967, addressed a range of problems dealing with presidential succession following
presidential death, resignation, removal, and inability and provided procedures for
fi lling a vice- presidential vacancy and for handling situations of presidential inabil-
ity. Many of the problems the Amendment addressed had proved vexing ever since
some were fi rst raised at the Constitutional Convention in Philadelphia more than
two centuries ago. Prior to 1967, they had resisted any solution, although reform
eff orts had been made.
Th ese problems relating to presidential continuity, of course, present themselves
episodically, rather than routinely. Yet the centrality of presidential leadership, to
America and the world, mandates that reliable arrangements exist to ensure presi-
dential continuity, particularly given America’s international role in a nuclear and
information age. Th e Twenty- Fifth Amendment to the Constitution provided such
procedures to address those perils which history suggested presented the greatest
jeopardy.
Section 1 of the Amendment confi rmed the actions followed by Vice President
John Tyler and seven successors. It established that a Vice President became, rather
than simply acted as, President upon the occurrence of an event that permanently
ix
x Introduction by Joel K. Goldstein
removed the prior Chief Executive. Section 2 created a new procedure to fi ll a vice-
presidential vacancy, one that rested on the twin premises rooted in normal prac-
tice that a Vice President should be someone whom the President chose, subject to
a demo cratic po liti cal check. Sections 3 and 4 provided procedures whereby a Presi-
dent, or his or her close associates in the executive branch, could initiate a tempo-
rary transfer of executive power to the Vice President in case the President was
unable to discharge the powers and duties of the offi ce.
In its fi rst forty-fi ve years, the Amendment has already helped ensure the con-
tinuity of presidential leadership. It provided a means whereby two Republican
Presidents could fi ll vice- presidential vacancies in the mid- 1970s, thereby ensuring
that a mid- term transition would not shift party control of the White House. Th at
contingency was not hypothetical. As Dean Feerick points out, some feared after
Vice President Spiro T. Agnew resigned his offi ce that the burgeoning eff ort to
remove Richard M. Nixon from offi ce could be compromised by the fact that a succes-
sion would elevate a Demo crat, Speaker of the House of Representatives Carl Albert,
to the presidency. Section 2, by furnishing a means of installing Gerald R. Ford as a
new Vice President, obviated that concern. On three occasions, Presidents Ronald
Reagan and George W. Bush followed the procedures in Section 3 for transferring
power, prudent acts that are likely to create helpful pre ce dents of their own.
Th e book takes its signifi cance largely from the importance of presidential con-
tinuity and the role the Twenty- Fifth Amendment plays in ensuring it. Yet the story
of the Twenty- Fifth Amendment also furnishes a marvelous case study regarding
two other facets of American government. It provides a fascinating account of
legislative behavior. Signifi cant legislation generally occurs only when legislators
make choices and strike compromises. Th at becomes particularly true for constitu-
tional amendments, which require super- majority approval at multiple stages. Addi-
tional constraints emerge in dealing with an issue like presidential succession and
inability that does not engage voters and accordingly often may not preoccupy
their elected representatives. Th e book describes the choices Senator Birch Bayh and
the Amendment’s other architects needed to make to ensure its success.
Th e story of the Twenty- Fifth Amendment also provides insights into the pro-
cess of amending and interpreting the Constitution. Regarding the former, Dean
Feerick describes the way in which the Amendment was conceived and the sources
from which it drew, the adjustments made to respond to various concerns, the pro-
cess of mobilizing support, the challenges of drafting, and the ultimately successful
ratifi cation. Regarding ratifi cation, the book off ers extensive summaries of the fram-
ers’ intent in a situation in which the presence of available comprehensive legislative
rec ords allows recourse to original intent as an interpretive guide on many questions.
Ultimately, the publication of the third edition of Th e Twenty- Fifth Amendment
is a signifi cant event because it renews and extends a book that was a seminal con-
tribution when fi rst published and that has retained its importance for more than
three- and- one- half de cades. Now, as was true then, government offi cials faced with